The Issue Whether Petitioner's application for license to practice medicine by endorsement pursuant to Chapter 458, Florida Statutes, should be approved. Petitioner appeared at the hearing unaccompanied by legal counsel and was advised of her rights and applicable procedures in administrative proceedings under Chapter 120, Florida Statutes. She elected to represent herself in this matter. This case arises from the provisional denial of Petitioner's application for licensure by endorsement to practice medicine, pursuant to Chapter 458, Florida Statutes. By Respondent's Order, dated January 29, 1982, the application was denied pursuant to subsection 458.313(1)(d), Florida Statutes, on the ground that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. In its Order, Respondent advised Petitioner-of her right to petition for a hearing. Petitioner so requested a hearing under Section 120.57, Florida Statutes, by letter to Respondent, dated May 2, 1982.
Findings Of Fact On October 1, 1981, Petitioner Elda Giannantonio filed an endorsement application with Respondent on a standard form provided by the agency, together with supporting documents and the standard application fee. (Exhibit 1) By "Final Order" of the Board of Medical Examiners, dated January 29, 1982,which recited action taken by the Board on December 4, 1981, it was found that Petitioner had not been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc., and is not certified by the National Board of Medical Examiners as having completed its examination within the ten years immediately preceding the filing of the application for licensure by endorsement. It was therefore concluded by the Board that Petitioner had not met the statutory requirements for licensure by endorsement pursuant to Section 458.313(d), Florida Statutes. In all other respects, Petitioner has met the necessary requirements for licensure by endorsement. (Testimony of Faircloth, Exhibit 1, Stipulation) Petitioner was born and educated in Italy where she received her Medical degree in 1953. To be licensed by endorsement in Florida, a foreign graduate must have received a standard certificate after passing an examination given by the Educational Commission for Foreign Medical Graduates. Petitioner received such a certificate on March 28, 1962. (Testimony of Faircloth, Petitioner, Exhibit 1) A statutory requirement of all applicants for licensure by endorsement is that the applicant must have been certified by licensure examination of the Federation of State Medical Boards of the United States, Inc. (FLEX) or certified by the National Board of Medical Examiners as having completed its examination; provided that said examination required shall have been so certified within the ten years immediately preceding the filing of the application for licensure. The National Board of Medical Examiners examination is administered only to students at Medical schools in the United States. Petitioner has not been certified by either licensure examination. All states, including Florida, recognize the FLEX examination as the standard test for licensure. (Testimony of Petitioner, Faircloth, Exhibit 1) Petitioner was of the mistaken opinion that the fact she had Practiced medicine in New York and had been certified by the Educational Commission for Foreign Medical Graduates was sufficient to qualify her for licensure by endorsement, without the need for either National Board or FLEX certification. However, the instructions provided applicants by Respondent clearly showed that both requirements must be met by foreign graduates. (Testimony of Petitioner, Faircloth, Exhibit 2)
Recommendation That the application of Petitioner Elda Giannantonio for licensure by endorsement pursuant to Section 458.313, Florida Statutes, be denied. DONE and ENTERED this 24th day of August, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 24th day of August, 1982. COPIES FURNISHED: Elda Giannantonio, M.D. 27 Kohr Road Kings Park, NY 11754 Chris D. Rolle, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32301 Dorothy J. Faircloth Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Samuel Shorstein Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The issue is whether the Respondent is guilty of the allegations contained in the Administrative Complaints and, if so, what disciplinary actions should be taken against him, if any.
Findings Of Fact Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, Florida Statutes, and Chapters 455 and 458, Florida Statutes. Respondent, David M. Kenton, M.D., was and is at all times material a physician licensed in the State of Florida, having been issued license number ME 0037023. Dr. Kenton's office address is 1701 West Hillsborough Boulevard, Suite 101, Deerfield Beach, Florida. Mobile Health Corporation is a corporation organized pursuant to the laws of the State of Florida. Factual Background Mobile Health Corporation operates what is known as a multiphasic health testing center. This facility is licensed by the Florida Department of Health and Rehabilitative Services (HRS) pursuant to the Florida Multiphasic Health Testing Center Law, Section 483.28, et. seq., Florida Statutes (1989). A multiphasic health testing center is defined in the Florida Statutes as a fixed or mobile facility where specimens are taken from the human body for delivery to registered clinical laboratories for analysis and where certain measurements such as height and weight determinations, blood pressure determinations, limited audio and visual tests, and electrocardiograms are made, Section 483.288, Florida Statutes (1989). At all times material, Mobile Health Corporation (Mobile Health) was licensed by the Department of Health and Rehabilitative Services pursuant to License Number 00163, effective June 30, 1989. Pursuant to its license with HRS, Mobile Health was authorized to provide certain diagnostic tests which included carotid doppler blood flow analysis, heart echocardiography, ultrasounds, mammography, and clinical laboratory tests. The president of Mobile Health was Christine Byrum. As president, she had the responsibilities to provide for the day- to-day operations and management of the business, and the duties incident to management, marketing, and operations of the company. Dr. Kenton was at all times material the vice president and treasurer of Mobile Health Corporation, and had employment responsibilities as the medical director for the corporation. Dr. Kenton was responsible for assuring the proper clinical operation of Mobile Health. A copy of Dr. Kenton's job description was attached to the Amended Stipulated Facts as Exhibit A. It states: GENERAL STATEMENT With broad general direction, he/she will perform administrative duties for the mobile test unit. He/She is responsible for directing work methods, quality control of procedures performed and interpretation. DUTIES: Is responsible for quality of examination performed and the quality of interpretation of studies. Will keep abreast of new procedures, equipment, products and methods, will review and express an opinion of new equipment evaluation and applications. Evaluates site problems relating to quality control, staffing problems, work method procedures, safety and any medical and/or legal interests. Will mediate problems of the Physician staff, such as salary adjustments, discipline and medical/legal matters. Dr. Kenton, as part of his duties as medical director, signed all requests by Mobile Health for analysis to be conducted by clinical laboratories with respect to specimens collected at the center. Dr. Kenton reviewed the clinical laboratory analysis, together with the results of any measurements or other testing procedures performed at Mobile Health. Dr. Kenton read, interpreted, and signed all those results before they were sent by Mobile Health to its patients. Dr. Kenton was responsible to supervise the quality of laboratories used for clinical laboratory tests of patients of Mobile Health. During all times material, all such tests were analyzed by a clinical laboratory licensed by the Department of Health and Rehabilitative Services. As medical director, Dr. Kenton was also responsible for the quality of the studies performed at Mobile Health, and the quality of the interpretation of medical studies. Dr. Kenton is a cardiologist, and was personally responsible for interpreting the echocardiograms performed by Mobile Health. A radiologist was under contract to Mobile Health to interpret the mammogram and ultrasound studies. At all times material, these studies were interpreted by a board certified radiologist. Dr. Kenton performed his duties as Medical Director of Mobile Health in conformance with the provisions of Section 483.308, Florida Statutes (1989). Pursuant to its license with HRS, Mobile Health was authorized by Florida's Multiphasic Health Testing Center Law to perform all medical tests which were performed at Mobile Health Corporation. Florida's Multiphasic Health Testing Center Law permitted each of these tests to be conducted by Mobile Health without a prior order from a physician. The Department of Health and Rehabilitative Services was responsible to inspect at least annually the premises and operations of all multiphasic health testing centers. Mobile Health had been subject to inspections by HRS. Mobile Health was found to be in compliance with the Florida law applicable to multiphasic health testing centers during an inspection just prior to the incidents in question. A copy of the HRS recommendation for licensure pursuant to an HRS survey conducted on June 7, 1989, disclosing "no deficiencies" was attached to the Amended Stipulated Facts as Exhibit B. The Advertisements Which Are the Subject of the Administrative Complaint On July 9, 1989, Mobile Health Corporation published an advertisement in the Tallahassee Democrat newspaper marketing its services, and advising readers that Mobile Health would be providing medical testing services in Tallahassee on July 21, 1989. On August 28, 1989, Mobile Health Corporation published an advertisement in the Panama City New Herald marketing its services, and advising residents in Panama City, Florida, that Mobile Health would be providing medical testing in Panama City on September 1, 1989. Mobile Health hired a professional advertising agency for the purpose of creating these advertisements. Dr. Kenton did not select the advertising agency, and did not advise the advertising agency pertaining to the substance or contents of the published advertisements which are the subject of these Complaints. Both the July 9, 1989, advertisement in Tallahassee and the August 29, 1989, advertisement in Panama City contained medical claims that were false, deceptive or misleading. The advertisements state in part: Test 2 - Heart Echocardiography with Doppler THIS TEST DETECTS HEART OR VALVE MALFUNCTIONS THAT COULD LEAD TO HEART ATTACKS DUE TO FATTY BLOCKAGES IN THE CORONARY ARTERIES. It is a generally accepted principle of medical practice that echocardiography has a limited role in the screening of patients for coronary artery disease because this test cannot always evaluate the presence or absence of fatty blockages. Furthermore, patients with significant coronary artery disease who have not had a prior myocardial infarction can have a normal echocardiogram. The advertisements also state in part: Test 3 - Ultrasound Screen for Prostate Cancer. THIS TEST DETECTS THE FOURTH LEADING CAUSE OF CANCER IN MEN. This safe, painless and noninvasive tests take less than 20 minutes. Mobile Health used only Suprapubic Ultrasound in its screening of patients for prostate cancer; it did not utilize Transrectal Ultrasound. It is a generally accepted principle of medical practice that Suprapubic Ultrasound is not effective in the screening of patients for prostate cancer because this test can not detect anything but the largest, most advanced cases of prostate cancer. These advertisements identified Mobile Health by name and did not identify Dr. Kenton. The advertisements contained the toll free phone number of Mobile Health. This phone number was not the phone number of Dr. Kenton's office. Although Dr. Kenton was aware generally that advertisements were being placed by Mobile Health, he did not review the advertisements which were published by Mobile Health in the Tallahassee Democrat on July 9, 1989, in the Panama City News Herald on August 28, 1989, prior to their publication. The advertisements contained a legal disclaimer as required by Section 483.305, Florida Statutes, which stated: Health screening tests may or may not alert you and your doctor to serious medical problems and are not intended to be a substitute for a physician's examination. Rule 21M-24.001(2), Florida Administrative Code, provides that: No physician shall disseminate or cause the dissemination of any advertisement or adver- tising which is in any way false, deceptive, or misleading. Any advertisement shall be deemed by the Board to be false, deceptive, or misleading if it . . . [c]ontains a mis- representation of facts . . . [m]akes only a partial disclosure of relevant facts . . . [c]reates false or unjustified expectations of beneficial assistance . . . [or] . . . [a]ppeals primarily to a layperson's fears, ignorance, or anxieties regarding his state of well being . . . [or] . . . [f]ails to con- spicuously identify the physician by name in the advertisement. There were few responses by the public to both of these advertisements. No patient has indicated any harm as a result of the advertisements or complained to DPR. The advertisements were discontinued voluntarily by Mobile Health after the deceptive nature of the advertisements were brought to its attention. There is no evidence that Dr. Kenton participated in disseminating the advertisements. Dr. Kenton did not profit as a result of these advertisements. Soon after Petitioner began its investigation into this matter, Dr. Kenton resigned as the Medical Director of Mobile Health. Mobile Health soon thereafter concluded its business operations and allowed its license with HRS to lapse. Dr. Kenton received his medical degree in 1979 from the State University of New York, Buffalo School of Medicine. He completed his internship at Jackson Memorial Hospital/University of Miami School of Medicine in 1980, and then completed his residency at the same institution in June 1982. Dr. Kenton completed a fellowship in cardiology at the Georgetown University Medical School in June 1984. Dr. Kenton is a young physician with an unblemished record. He has never previously been the subject of a DPR investigation, and has never been sued for medical malpractice. Dr. Kenton has staff privileges at several hospitals which include North Broward Medical Center and North Ridge General Hospital in Fort Lauderdale; West Boca Medical Center in Boca Raton; and Delray Community Hospital and Pinecrest Hospital in Delray Beach. The issuance of sanctions such as a written reprimand, an order of probation, or a license suspension may affect Dr. Kenton in his renewal of staff privileges at his existing hospitals, and may have adverse consequences if Dr. Kenton should apply for staff privileges at hospitals to which he is not currently on staff. The stigma of a reprimand, probation, or suspension may also adversely effect his professional standing in the local medical community and may have significant financial consequences upon Dr. Kenton. Should Dr. Kenton be found to have violated Chapter 458, Florida Statutes (1989), appropriate discipline in this matter should not exceed the imposition of a $2,500 administrative fine, plus an order requiring Dr. Kenton to cease and desist from disseminating misleading advertisements in the future, and a restriction of his medical license to prohibit him from operating any type of multiphasic mobile testing service, as defined in Section 483.288, Florida Statutes (1991), for a period of five years from the date of final action in this matter.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Dr. Kenton not guilty of the allegations found in the Administrative Complaints, and dismissing those Administrative Complaints. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of June, 1992. WILLIAM R. DORSEY, JR. 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 2nd day of June 1992. 1/Subsequently an Amended Administrative Complaint was filed on February 7, 1990. The amendment only deleted a reference to Case No. 89-05880 which had been included in the caption of the original administrative complaint by mistake. COPIES FURNISHED: Randolph P. Collette, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Mark A. Dresnick, Esquire Grand Bay Plaza - Suite 201 2665 South Bayshore Drive Miami, Florida 33133 Dorothy Faircloth Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four parts. He failed Part IV the clinical practical, or hands- on, part of the examination dealing with needle insertions, manipulation and needle removal, patient care, sanitation and antiseptic application. In 1983 the Florida Legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section. In December, 1984, Petitioner was notified in writing as to his 1984 examination results and was advised in an accompanying document that the deadline for filing an application to retake the acupuncture examination in 1985 would be May 24, 1985. That same accompanying document also advised Petitioner that candidates who failed either section 1 or section 2 of Part III must retake both section 1 and section 2 of Part III. Petitioner made the decision that he would not take the 1985 acupuncture examination but rather would wait until the 1986 acupuncture examination was given. However, when Petitioner "got laid off" from his employment, he decided to take the 1985 examination, mailing his application therefor the day before the deadline. In July, 1985, Petitioner retook Part III of the acupuncture examination. Petitioner received a score of 54 on the written practical section and a score of 65 on the clinical practical section. A score of 70 or greater on both sections is required in order to achieve a passing grade for Part III. Petitioner requested a review of his grades. That review revealed that although errors were found in scoring the written practical section, Petitioner's adjusted grade on that portion of the practical Part of the examination remained below the required 70. The review of the clinical practical section of that Part of the acupuncture examination revealed that both examiners who graded Petitioner on the clinical practical section evaluated Petitioner identically as to those areas in which Petitioner's performance was inadequate, agreeing item by item.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner failed both sections 1 and 2 of Part III of the 1985 acupuncture examination; denying Petitioner's request that his grade be set aside and that he be permitted to retake the examination without first completing the educational requirements; and denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 24th day of October, 1986, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1986. COPIES FURNISHED: Marcelle Flanagan, Executive Secretary Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce Alexander, Esquire 9200 South Dadeland Boulevard Suite 515 Miami, Florida 33156 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue The central issue in this case is whether Richard Koenig, D.P.M., should be licensed as a podiatrist in the State of Florida. More specifically, this case must determine these issues: whether Richard Koenig, D.P.M., has practiced podiatry in the past at an acceptable standard of care as required by Section 461.013(1)(s), Florida Statutes; whether he fraudulently misrepresented material facts on his application for licensure as a podiatrist in violation of Section 461.013(1)(a), Florida Statutes; and whether his application to become licensed as a podiatrist is barred on grounds of administrative res judicata because of the Board of Podiatry's denial of his application in 1994-1995.
Findings Of Fact Dr. Koenig is an applicant for licensure as a podiatrist in the State of Florida. He is presently licensed to practice podiatry in the State of Missouri and was previously licensed in Illinois and Florida. Both of the latter licenses have expired. Dr. Koenig meets all criteria for licensure in Florida other than the grounds for denial cited by the Board in its Notice of Intent to Deny and described in the Statement of the Issues, above. The Board is responsible for certifying individuals who are qualified to become licensed as podiatrists and the Department of Health is responsible for issuing the licenses after the Board's certification. Dr. Koenig permitted his Florida license to lapse while he practiced in Missouri. He initially sought to be licensed again in this state in 1994. At that time, his application to sit for the examination, and thereafter to be licensed, was denied by the Board. Dr. Koenig requested a hearing on the denial before the Division of Administrative Hearings (DOAH) and a case was opened as DOAH Case No. 95-0570. Dr. Koenig later dismissed his petition and the DOAH file was closed. The earlier denial thus became final. Dr. Koenig reapplied for licensure in 1997. It is this application which is the subject of the instant proceeding. Dr. Koenig has already taken and passed the national podiatric licensure examination in Louisiana in 1997, thus meeting the examination requirement. Dr. Koenig was involved in approximately eleven podiatric malpractice cases during his practice in Missouri in the 1980's and early 1990's. Eight of the cases were settled by his insurance carrier. Three additional cases were pending at the time of Dr. Koenig's initial application in 1994. Of these three, Dr. Koenig prevailed at trial in two cases. The third case has been voluntarily dismissed by the plaintiff and has not been refiled. Dr. Koenig has not been engaged in the practice of podiatry as his primary professional activity since 1993-1994. He occasionally provides podiatric services as part of his commitment to the U.S. Navy, but he has primarily been engaged in developing and marketing two devices for use in podiatric and related services and has been teaching. Dr. Koenig received and reviewed the 1994 Board Notice of Intent to Deny Application for Examination and Licensure prior to filing his 1997 licensure application. In addition, he was aware that he had dismissed his petition to review that decision and the Board's decision was thus final. Nevertheless when called upon to state in the 1997 application whether he had ever been denied licensure as a podiatrist, Dr. Koenig answered "No." (Petitioner's Exhibit No. 1) This answer was false. Question five of the application for podiatry licensure reads: "Has any podiatry license held by you ever been acted upon, suspended or revoked, or have you ever been denied licensure?" Dr. Koenig's explanation concerning his negative answer to this question was that he thought he was being denied the right to take the examination, which was a condition required before he could be licensed. His understanding is supported by a reading of the minutes of the Board meeting at which the decision was made: "Dr. Simmonds moved to deny Dr. Koenig from taking the examination based on not having the ability to practice Podiatric Medicine at a level of care and safety." (Petitioner's Exhibit No. 1) However, the Board sent, and Dr. Koenig received, a Notice of Intent to Deny Application for Examination and Licensure. While that document plainly states that he was both being denied the right to take the examination and the right to be licensed, he did not focus on the second point--the right to be licensed. Dr. Koenig offered his explanation to the Board at its meeting on July 25, 1997, and when asked about the application question, he stated, "Because it is a misunderstanding. I make a differentiation between being denied a license and being denied the opportunity to sit for a license, and I may be wrong, and I stand corrected if I am, but that's what my intention was." (Petitioner's Exhibit No. 1, Transcript pp. 21-22). He understood that the Board was denying him the right to take the examination, an essential element of his application process. Dr. Koenig's explanation has been consistent throughout this proceeding, both before the Board and in the formal hearing. Although Dr. Koenig did answer the question incorrectly, his explanation that he did so without any fraudulent intent is entirely credible. Had there been an intent to defraud the Board regarding his application, Dr. Koenig might have avoided disclosing the malpractice suits which resulted in the Board's earlier decision to deny him licensure. Those malpractice suits are no longer an appropriate basis to deny licensure. Dr. Koenig is a Board-certified podiatrist and is a Fellow of the American College of Foot and Ankle Surgeons. One becomes Board-certified by taking an examination, by meeting practice requirements, and by submitting a number of medical cases to the Board for evaluation. Only about 10 percent of all podiatrists are Board-certified. Dr. Koenig's specialty is foot surgery and he has operated more often than a podiatrist in standard practice. Dr. Koenig has written several articles in peer- reviewed journals, and has spoken widely in the United States and elsewhere at various continuing medical education seminars. A frequent topic of his speeches involves the use of an implant which he developed to replace the big toe joint. This implant is patented, approved as a safe device by the FDA, and is covered by Medicare and Medicaid. Dr. Koenig has developed and marketed a special shoe for patients who have had foot surgery. There have been no Medicare or Medicaid complaints brought against Dr. Koenig and he maintains Medicare and Medicaid provided numbers. The two lawsuits which went to a jury verdict were decided in his favor and there are no lawsuits pending now. The multiple claims of malpractice occurred when he was actively engaged in foot surgery practice in Missouri. His insurance carrier, without consulting him, settled those claims. After he changed carriers and contested the claims, he has prevailed. The Board in this proceeding presented no evidence that Dr. Koenig has practiced below the standard of care. Nor did it refute his credible testimony.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that a Final Order be entered granting Dr. Koenig's license to practice podiatry in the State of Florida. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of April, 1998. COPIES FURNISHED: John J. Rimes, III Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Eric B. Tilton Gustafson, Tilton, Henning & Metzger, P.A. Suite 200 204 South Monroe Street Tallahassee, Florida 32301 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Eric G. Walker, Executive Director Board of Podiatry Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the Petitioner correctly answered questions 37, 44, 49, 83, and 206 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998.
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 physician assistants. Sections 455.574 and 458.347(7), Florida Statutes (1997). Mr. Molina sat for the Physician Assistant Examination administered on June 25 though 29, 1998. At the hearing, he disputed the Department's determination that the answers he gave to questions 37, 44, 49, 83, and 206 are incorrect. The questions that comprise the General Written Exam portion of the June 1998 Physician Assistant Examination were objective, multiple-choice questions. The questions were drawn from a bank of questions written by licensed physician assistants trained by a psychometrician employed by the Department. Prior to being included in the question bank, these questions were reviewed and field-tested to ensure that they were good, fair questions that adequately and reliably tested the applicant's ability to practice as a physician assistant with reasonable skill and safety. After the test questions for the June 1998 examination were selected from the question bank, the questions were reviewed before the examination and after the examination. The candidates taking the examination in June 1998 were directed in the instructions to the examination to choose the best answer from among four possible answers. This instruction was included in the examination booklet provided to each candidate, and the Department's normal procedure was to read the instructions aloud prior to the examination. According to the Department, the correct answer to question 37 is "C"; Mr. Molina chose answer "B." Although question 37 is, on its face, clear and unambiguous, the reference book relied upon by the Department to support its answer, although an authoritative source for physician assistants, does not, in fact, unambiguously support the Department's answer. Question 37 refers to the "entire anterior chest," and the answer to the question can be derived from the "Rule of Nines." The "Rule of Nines" is a standard rule used in the practice of medicine and is illustrated in an authoritative text entitled Current Medical Diagnosis and Treatment, which contains a chart showing the outline of the human body divided into sections, each representing approximately nine percent of the body's surface area. The chart shows, in pertinent part, the trunk of the human body divided into the "posterior" upper trunk and the "posterior" lower trunk, with a line drawn somewhat above the umbilicus to illustrate the division of the trunk into the upper and lower portions. The Department's expert testified, without explanation, that the "entire anterior chest" is composed of both the upper and the lower trunk. This conclusion cannot be drawn from the chart contained in the reference book relied upon by the Department, and Mr. Molina's answer to question 37 is as reasonable as the answer the Department considers correct. Accordingly, Mr. Molina should receive credit for his answer to question 37. According to the Department, the correct answer to question 44 is "D"; Mr. Molina chose answer "B." Question 44 asks for the "MOST likely diagnosis" based on the facts contained in the question. Question 44 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be derived from information included in the reference book entitled Ophthamology for the Primary Care Physician, which is considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 44 because the answer he gave is not the correct answer. 3/ According to the Department, the correct answer to question 49 is "A"; Mr. Molina chose answer "C." Question 49 asks for the "MOST likely" diagnosis based on the facts contained in the question. Question 49 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 1 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 49 because the answer he gave is not the correct answer. According to the Department, the correct answer to question 83 is "D"; Mr. Molina chose answer "C." Question 83 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 1 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 83 because the answer he gave is not the correct answer. According to the Department, the correct answer to question 206 is "C"; Mr. Molina chose answer "A." Question 206 asks for the "MOST common" presentation of a precancerous lesion. Question 206 is clear and unambiguous, and the correct answer is included among the choices provided. The correct answer can be found in volume 2 of Harrison's Principles of Internal Medicine, a reference book included in the list of recommended books sent to the candidates for the Physician Assistant Examination and considered an authoritative text by physician assistants. Mr. Molina should not receive credit for his answer to question 206 because the answer he 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 finding that Nigel Molina is entitled to credit for his answer to question 37 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998; finding that Mr. Molina is not entitled to credit for his answers to questions 44, 49, 83, and 206 of the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998; and recalculating Mr. Molina's score on the General Written Exam portion of the Physician Assistant Examination administered June 25 through June 29, 1998. DONE AND ENTERED this 8th day of February, 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 8th day of February, 2000.
The Issue Validity of Respondent's policy that applicants to retake the examination administered for licensure as an optometrist must have passed all portions of the national board examination within five years prior to the filing of the application. This rule challenge arises under Section 120.56, Florida Statutes. It was consolidated for purposes of hearing with another case involving the same parties, DOAH Case No. 84-2647, wherein Petitioner is seeking to have his application to retake part of the state examination for optometrists approved. In that case, the Petitioner has provisionally denied his request based on the policy being challenged as a rule in this proceeding. At the hearing, Petitioner testified in his own behalf and called Mildred Gardner, Executive Director of the Board of Optometry, as a witness. Petitioner submitted 12 exhibits in evidence and the Respondent submitted one exhibit. The parties have submitted posthearing findings of fact pursuant to Section 120.57(1)(b)4, Florida Statutes. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary.
Findings Of Fact Petitioner Samuel Scardino is an optometrist who is currently licensed as such in the states of California, Illinois, Kentucky, and Michigan. He graduated from the Illinois College of Optometry in 1978, and successfully passed all parts of the National Board of Optometry examination in the same year. He has been a practicing optometrist in Battle Creek, Michigan, since 1978. (Testimony of Petitioner, Petitioner's Exhibit 4) By application dated May 10, 1983, Petitioner applied to take the Florida optometry examination. His application was received by Respondent on May 13, 1983. Petitioner's application was approved pursuant to Respondent's Rule 21QER83-1 which amended Rule 21Q-4.01, Florida Administrative Code, on May 19, 1983, to provide that an applicant must have obtained a qualifying score on the national examination within five years prior or two years subsequent to the date of passage of the state examination. It also provided that a passing score of 75 must be obtained on the pharmacology section of the national examination in 1983, or subsequent thereto, within five years prior or two years subsequent to passage of the state examination. By letter of May 18, 1983, Respondent acknowledged receipt of Petitioner's application and $250.00 fee, but indicated that the application was incomplete in that a final transcript must be sent by his school, and also that the National Board report of passing grades within the past five years and the pharmacology section in 1983 with a score of 75 or above were required. Petitioner complied with these requirements and received an admission card for the optometry examination to be held in July of 1983. Petitioner took the examination at that time and received notice in September 1983 that he had failed the pharmacology/pathology portion of Part II of the examination with a grade of 61. A review of Petitioner's objections to the grade resulted in a further letter from Respondent, dated December 23, 1983, which advised Petitioner that the Board of Optometry review committee had reviewed the matter and changed his final grade for the pharmacology/pathology portion of the examination from 61 to 65, but that a final grade of 70 percent or better was required to achieve a passing status. He was thereupon advised of his right to a hearing under Section 120.57, Florida Statutes. (Testimony of Petitioner, Petitioner's Exhibit 1, 5-8, Respondent's Exhibit 1) On March 19, 1984, Petitioner filed an application for optometry reexamination with the Respondent, together with the $250.00 reexamination fee. The state application form for reexamination did not ask for any information concerning the National Board of Optometry examination, as did the original application form. Respondent's Rule 21Q-4.02, Florida Administrative Code, pertaining to reexamination, provided pertinently as follows: 21A-4.02 Reexamination.-- An applicant who fails either Part I or Part II of the state examination for licensure shall be required to retake only that part of the examination on which he failed to achieve a passing grade, provided that the applicant shall be limited to two retakes within a two year period from the date of original failure. If the applicant fails to achieve a passing grade as provided above, he shall be required to take the complete state examination for licensure in order to be entitled to be licensed as an optometrist. Reexamination shall be conditioned on payment of the reexamination fee. Respondent advised Petitioner by an undated letter which he received on April 7, 1984, that his National Board scores were no longer valid to take the Florida examination since they had been obtained more than five years prior to his application to take the 1984 examination. The letter further stated that 1983 was his last year of eligibility for examination under his 1978 National Board scores and that he had not been successful in his 1983 Florida examination. The letter enclosed an application for refund of his $250.00 fee for the 1984 examination. Petitioner thereafter spoke with the Executive Director of the Board of Optometry who indicated that the card would be evaluating his and other questions of candidates at their May 4, 1984 meeting. (Testimony of Petitioner, Gardner, Petitioner's Exhibits 2, 9, 11) The minutes of a meeting of the Board of Optometry on May 3, 1984, contains the following item: Examination 1984 - After discussion with Board Counsel, the Board reiterated that Examination candidates must have passed all parts of the National Board within 5 years prior to application to take the Florida examination in order that all candidates who pass the Florida examination are immediately eligible to apply for licen sure. Any candidate who applies to retake the Florida examination must also meet the requirements of passing the National Board within 5 years of applying to retake the Florida examination. All requirements of 21Q-4.01 apply to all candidates and no waiver of requirements shall be granted. Motion by Dr. Walker, seconded by Mrs. Chambers. Passed unanimously. The Board's Executive Director advised Petitioner of the action taken by the Board in a letter of May 14, 1984. He was also informed by this letter that if he completed the National Board requirements prior to the 1985 examination and applied for such examination, he would be required only to take the practical portion of Part II of the Florida examination, but that if he were not licensed in 1985, he would be required to take the entire Florida examination. After receiving the letter, Petitioner submitted his application for refund of the $250.00 reexamination fee which was approved on April 4, 1984 and thereafter paid to Petitioner. By Petition dated June 19, 1984, Petitioner requested an administrative hearing to contest the Respondent's denial of his application to retake the Florida optometry examination which was scheduled for August 1984. The instant rule challenge was subsequently filed in September 1984. (Testimony of Petitioner, Gardner, Petitioner's Exhibit 10) The policy statement announced by the Board at its May 3, 1984, meeting that applicants for reexamination must have passed the National Board examination within a period of five years prior to such application was first applied in 1984 and was uniformly applied to all applicants for reexamination who had not taken the National Board examination within the requisite period prior to application. (Testimony of Gardner)
