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)
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.
The Issue The issues are (1) whether Petitioner improperly disallowed payment for the dates of service set forth in the notices of disallowance sent by Petitioner to the provider, Clay O. Selley, D.C., and (2) whether Petitioner is required to pay the fees of the expert medical advisors utilized by the Agency for Health Care Administration in conducting its review of Dr. Selley's challenge to the notices of disallowance.
Findings Of Fact Based upon the testimony and evidence received at the hearing and the parties' stipulations, the following findings are made: Background On May 23, 1990, M. H. (hereafter "Claimant")2 suffered an injury to his lower back while moving a compressor at the construction site where he was working. The nature of the injury was a lumbosacral strain. The Claimant sought workers' compensation benefits for the injury, and on January 8, 1991, the judge of compensation claims (JCC) approved a stipulated settlement of the Claimant's workers' compensation claim. The settlement released the employer and the carrier from liability for future payments of compensation "other than future medical expenses." The settlement agreement stated that the Claimant attained maximum medical improvement (MMI) on August 31, 1990, "as per Dr. Phillip Appleton," a chiropractor. The settlement agreement further stated that "[f]or purposes of this Stipulation and Joint Petition, it is stipulated that the Claimant has a qualifying permanent partial impairment of the body as a whole of approximately 5%." The Claimant subsequently sought care from another chiropractor, Dr. Lana Perkins. Dr. Perkins first treated the Claimant in October 1990. Dr. Perkins placed the Claimant at MMI on March 12, 1991, with a zero percent permanent partial impairment rating. Nevertheless, the Claimant continued to seek (and Petitioner apparently continued to pay for) chiropractic care from Dr. Perkins through September 1992. After Dr. Perkins, the Claimant received (and Petitioner apparently paid for) treatment from another chiropractor, Dr. Dale Turner. Dr. Turner treated the Claimant from November 1992 to June 1995. When Dr. Turner retired in 1996, Dr. Selley took over the chiropractic treatment of the Claimant. By that time, the Claimant had received more than 80 chiropractic treatments from his previous chiropractors. Treatment of the Claimant by Dr. Selley On March 12, 1996, Dr. Selley received formal authorization from Petitioner to treat the Claimant. As of the date of the hearing, Dr. Selley was still authorized to treat the Claimant. He has never been de-authorized by Petitioner. "Authorization" requires Petitioner to reimburse Dr. Selley for his treatment of the Claimant, but only if such treatment is medically necessary. Dr. Selley first saw the Claimant on March 20, 1996, at which time he conducted a physical examination of the Claimant and reviewed x-rays taken by Dr. Turner in June 1995. Dr. Selley diagnosed the cause of the Claimant's ongoing back pain as muscle inflammation in conjunction with dysfunctional joints or, more specifically, "chronic joint dysfunction subluxation complex of L5 and lumbar myofascitis associated with lumbalgia [sic]." Dr. Selley attributed this condition to the Claimant's 1990 accident, and identified the following treatment plan for the Claimant: I will treat this patient utilizing chiropractic adjustments and physical therapy on an as needed (prn) basis. I will instruct the patient to call for an appointment if he experiences an episode of pain that does not resolve within a couple of days of home care. I will instruct him to continue with his home exercises. Dr. Selley treated the Claimant very infrequently between 1996 and 1999. Specifically, he saw the Claimant on seven occasions in 1996, one occasion in 1997, three occasions in 1998, and seven occasions in 1999. The frequency of treatment increased dramatically in 2000 and 2001. Dr. Selley saw the patient 47 times in 2000 and 28 times in 2001. Dr. Selley's office notes do not include any objective findings to explain the dramatic increase in treatment. Nor do the office notes identify any particular event that may have triggered the Claimant's need for greatly increased treatment. Each of Dr. Selley's office notes include the notation PRN, which means that the Claimant should return on an "as needed" basis. That plan is consistent with the concept of palliative care, which is treatment intended to mitigate the conditions, effects, or pain of an injury, rather than treatment intended to rehabilitate the patient. The treatment rendered by Dr. Selley between 1996 and 1999 is consistent with a PRN plan. During that period, Dr. Selley often did not see the Claimant for months at a time. By contrast, the chronology of treatment reflected in Dr. Selley's office notes for 2000 and 2001 strongly suggests that despite the PRN notations, the Claimant was actually being scheduled for follow-up appointments rather than being seen on an "as needed" basis. For example, the Claimant saw Dr. Selley on the same day(s) of the week -- i.e., Monday and Wednesday, or Tuesday and Thursday – for weeks at a time. Regularly scheduled appointments are not consistent with the concept of palliative care. At each appointment (including the specific dates of service at issue in this proceeding), the treatment rendered by Dr. Selley was "lumbar, lumbosacral and sacropelvic adjustments and joint mobilization along with EMS to the lumbar musculature and pulsed ultrasound to the lower back." Dr. Selley continued this same course of treatment throughout 2000 and 2001 despite the fact that the Claimant's symptoms did not show any significant improvement as evidenced by the increasing frequency of the treatments. The Agency's August 24, 2001, determination letter (discussed below) concluded that the course of treatment rendered by Dr. Selley was not medically necessary after March 28, 2001, because of its ineffectiveness. However, the weight of the evidence presented at the hearing demonstrates that Dr. Selley should have, in the words of one of the EMAs (Randolph Harding, D.C.), "thrown in the towel" on this course of treatment much sooner than that date. The burden is on Dr. Selley to demonstrate, through objective findings in his records, the reason that he continued to provide the same treatment to the Claimant despite its ineffectiveness. Dr. Selley's records failed to include such objective findings and, hence, failed to demonstrate medical necessity of the treatment he provided, including the treatment provided on the disputed dates of service. Objective findings are particularly important where, as here, the Claimant has reached MMI because MMI is the point at which additional remedial care is of no benefit to the patient. In order to justify additional remedial care, the provider would have to objectively find that the patient has had some type of exacerbation or injury that necessitates additional treatment to return the patient to the level he or she had attained at MMI. No such findings appear in Dr. Selley's records for 2000 and 2001. Objective findings are also important in the context of palliative care, which is how Dr. Selley and the Agency characterize the disputed services. Where, as here, the treatments are not achieving the goals of palliative care, objective findings are necessary to justify continuing the ineffective care in lieu of pursuing another course of treatment. As Dr. Harris testified (paraphrasing Dr. Harding), if the patient is not benefiting from the course of treatment in a palliative care situation yet the doctor continues to treat, "the doctor is the one being helped not the patient." Petitioner's Utilization Review Utilization review is an evaluation of the appropriateness of both the level and quality of health care rendered to a patient. The primary purpose of utilization review, both generally and in the workers' compensation context, is to contain health care costs. In the workers' compensation context, insurance companies such as Petitioner are statutorily required to review all bills, invoices, and other claims for payment submitted by health care providers to identify overutilization and billing errors. Such utilization review can be characterized as either retrospective review (because the treatment has already been rendered) or concurrent review (because payment has not yet been made). Utilization review is conducted through a review of the provider's clinical records. That is what occurred in both Petitioner's internal review pursuant to Section 440.13(6), Florida Statutes, and the review by the EMAs selected by the Agency in connection with the dispute under Section 440.13(7), Florida Statutes. When performing a utilization review, it is critical that the reviewers have all of the pertinent records. A review of inadequate or incomplete records is an inadequate or incomplete review. Petitioner first conducted a utilization review of Dr. Selley's treatment of the Claimant in 1998. The utilization review was conducted through an independent medical examination and clinical record review by James Barringer, D.C., and a clinical record review by Dr. Harris. Petitioner provided all of the Claimant's medical records (including the records of the chiropractors who treated the Claimant prior to Dr. Selley) to Dr. Barringer and Dr. Harris. Dr. Barringer concluded that the Claimant's continuing back pain was not related to the 1990 accident. Instead, Dr. Barringer was of the opinion that "the patient's problems are solely related to the arthritis and due to the multiple other injuries that he has had." Accordingly, in his report dated February 24, 1998, Dr. Barringer stated "I don't feel that any further treatment is clinically necessary or related to the work accident of 5/23/90." By contrast, Dr. Harris concluded that although the Claimant could have strained his back in a new injury, Dr. Selley had provided the minimal objective documentation to support his continued treatment of the Claimant as being related to the accident. In his April 10, 1998, report, Dr. Harris stated that the treatment rendered by Dr. Selley in 1996 and 1997 "was both reasonable and medically necessary in relation to the 5/23/90 accident." Despite Dr. Barringer's opinion, Petitioner continued to allow Dr. Selley to treat the Claimant. In late 2000 or early 2001, Petitioner initiated another utilization review of Dr. Selley's treatment of the Claimant. The utilization review consisted of a clinical record review by Dr. Harris and Joseph Costello, D.C. Petitioner provided all of the Claimant's medical records (including the records of the chiropractors who treated the Claimant prior to Dr. Selley) to Dr. Harris and Dr. Costello. In his report dated January 23, 2001, Dr. Costello concluded: Based upon my review of the records provided, it is my opinion that initially the chiropractic care furnished to this patient by Dr. Selley appears to have been provided on a rather conservative and isolated basis through 1999. I must, however, state that his complaints evidently changed, as per the records of Dr. Selley beginning on Monday, March 31, 1997. Since that time, there are complaints indicating radiation into his left lower extremity. It is my opinion after reviewing all records provided, that these new complaints do not appear to be directly, nor causally attributed to his original work comp [sic] injury of May 23, 1990. It is therefore my opinion that the aggressive treatment furnished to this patient in the year 2000 does not appear to be necessary, reasonable, nor related in connection to the work comp [sic] injury of May 23, 1990. It is therefore my conclusion that this treatment would be construed to be excessive and not medically necessary, nor reasonable in connection to the work comp [sic] injury of May 23, 1990. In his report dated February 16, 2001, Dr. Harris reached the opposite conclusion than he reached in his 1998 report. He concluded that Dr. Selley provided insufficient objective evidence to support his continued course of treatment for the Claimant. Accordingly, Dr. Harris opined: Dr. Selley has failed to demonstrate the causal relationship between the ongoing symptoms and the accident of 5-23-90. More importantly, he has failed to demonstrate there is a medical need for his care based upon objective evidence which causes the findings to be greater than the 5% [impairment rating] ascribed to this patient previously. Therefore, . . . all the treatment in the calendar year 2000 is both unreasonable and medically not necessary as it relates to the accident of May 23, 1990. By letter dated February 9, 2001, Petitioner informed Dr. Selley of the results of its utilization review. Specifically, the letter informed Dr. Selley that: Based upon the [Petitioner's] utilization review investigation and the peer review reports, [Petitioner] has a reasonable basis to conclude overutilization and improper utilization as it relates to your treatment of this claimant. Based upon the reports, it appears your treatment has been provided at inappropriate levels of service and the prolonged period of treatment that you have provided was not medically necessary as it relates to [the] industrial accident. Additionally, some of the bills submitted may not have been submitted in a timely fashion. The letter emphasized that Dr. Selley was not de- authorized, but it informed him that Petitioner intended to "review [his] medical bills and disallow specific bills based upon [Petitioner's] investigation . . . ." The letter offered Dr. Selley the opportunity to resolve the dispute through negotiation with Petitioner. The record does not reflect whether Petitioner and Dr. Selley attempted to negotiate a resolution of this matter, but if they did their efforts were not successful. Notices of Disallowance On February 12, 2001, Petitioner sent Dr. Selley a Notice of Disallowance (First Notice), which Dr. Selley received on February 19, 2001. The First Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: November 7, 14, and 16, 2000; and January 23, 2001. However, Petitioner subsequently reimbursed Dr. Selley for all of those dates of service except January 23, 2001. The First Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on January 19, 2001, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. However, as of the date of the hearing, Petitioner had not reimbursed Dr. Selley for that date of service. On March 6, 2001, Petitioner sent Dr. Selley a second Notice of Disallowance (Second Notice), which Dr. Selley received on March 9, 2001. The Second Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: January 29, 2001, and February 20, 2001. The Second Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on February 2, 2001, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. However, as of the date of the hearing, Petitioner had not reimbursed Dr. Selley for that date of service. On March 15, 2001, Petitioner sent Dr. Selley a third Notice of Disallowance (Third Notice), which Dr. Selley received on March 20, 2001. The Third Notice informed Dr. Selley that Petitioner disallowed and would not pay for the service rendered by Dr. Selley to the Claimant on the following dates: November 28, 2000, and December 14, 2000. The Third Notice also informed Dr. Selley that Petitioner would reimburse him for the services rendered to the Claimant on December 5, 2000, despite Petitioner's belief that the treatment rendered on that date was excessive, unreasonable, and not medically necessary. Petitioner subsequently reimbursed Dr. Selley for that date of service. The treatment provided on each of the dates of service in dispute, as set forth in Dr. Selley's office notes, was "lumbar, lumbosacral and sacropelvic adjustments and joint mobilization along with EMS to the lumbar musculature and pulsed ultrasound to the lower back." Except for the December 14, 2000, date of service, the amount billed by Dr. Selley on each date was $82.00. The maximum reimbursement allowed under the workers' compensation fee schedule for those services is $41.60. The amount billed on December 14, 2000, was $100.00 because another service (procedure code 99070 EM) was purportedly rendered on that date in addition to those services which were rendered on the other dates in dispute. The amount billed for the additional service was $18.00. The record does not reflect what procedure code 99070 EM means, nor does it reflect the maximum reimbursement amount for that service under the workers' compensation fee schedule. Dr. Selley's office note for December 14, 2000, does not describe the additional service. The description of the treatment rendered on that date is identical to the description of the treatment rendered on the other dates of service in dispute. Accordingly, there is insufficient evidence to justify the additional $18.00 charge for the December 14, 2000, date of service. At the hearing, Dr. Selley testified that he had not been reimbursed by Petitioner for the following additional dates of service: February 27, 2001; March 15 and 28, 2001; April 10, 2001; May 3 and 29, 2001; June 13, 19, 21, and 25, 2001; and July 13, 2001. However, the parties stipulated (and Dr. Selley acknowledged) that the dates beyond March 28, 2001, are not at issue in this proceeding. The record does not include any evidence relating to the dates of service after March 28, 2001. To summarize, the dates of service and amounts still in dispute in this proceeding are: Date Amount Billed Maximum Reimbursement Nov. 28, 2000 $ 82.00 $ 41.60 Dec. 14, 2000 $ 100.00 $ 41.60 Jan. 19, 2001 $ 82.00 $ 41.60 Jan. 23, 2001 $ 82.00 $ 41.60 Jan. 29, 2001 $ 82.00 $ 41.60 Feb. 2, 2001 $ 82.00 $ 41.60 Feb. 20, 2001 $ 82.00 $ 41.60 Feb. 27, 2001 $ 82.00 $ 41.60 Mar. 15, 2001 $ 82.00 $ 41.60 Mar. 28, 2001 $ 82.00 $ 41.60 $838.00 $416.00 49. The record does not include any evidence to explain why Petitioner disallowed payment for these dates, but not others during this same time period. Nor does the evidence explain why Petitioner agreed to pay for certain dates of service despite its affirmative determination that the services rendered were unreasonable and not medically necessary. Dr. Selley "Petitions" the Agency Under Section 440.13(7) Dr. Selley responded to the First Notice by letter dated March 16, 2001, and responded to the Second and Third Notices by letter dated April 3, 2001. Both letters were addressed to Petitioner. Copies of the letters were sent to Petitioner's attorney and the Agency. The March 16, 2001, letter was sent by certified mail to all of the recipients. The record does not reflect whether the April 3, 2001, letter was sent by certified mail. The March 16, 2001, letter included the office notes prepared by Dr. Selley relating to the treatment rendered on each occasion that he saw the Claimant between March 20, 1996, and February 27, 2001. The April 3, 2001, letter included copies of Dr. Selley's office notes through March 15, 2001, and also included copies of the HCFA forms and billing information related to the disputed dates of service. The Agency treated Dr. Selley's letters as "petitions" under Section 440.13(7), Florida Statutes. Petitioner sent several letters to the Agency in which it asserted that the "petitions" failed to meet the requirements of Section 440.13(7)(a), Florida Statutes, and therefore should be dismissed. The Agency did not formally respond to those letters, nor did the Agency notify Petitioner of its determination that Dr. Shelley's "petitions" were valid. After learning that the Agency had accepted Dr. Selley's "petitions" as valid and that it had referred them to EMAs for review, Petitioner sent the Agency a notebook containing the records of the chiropractors who treated the Claimant prior to Dr. Selley as well as the peer review reports obtained by Petitioner in the course of its utilization review. The Agency did not forward those materials to the EMAs. Referral to the EMAs When the Agency determines that a medical opinion is necessary to assist in resolving a reimbursement dispute, it initially refers the matter to two EMAs. If the opinions of those EMAs are inconsistent with each other, the Agency refers the matter to a third EMA who serves as a "tie-breaker." A third EMA was not used in this case. The Agency (through Donna Reynolds) determined that it was necessary to refer this matter to EMAs in order to assess the adequacy of Dr. Selley's records in light of Petitioner's claim of overutilization. Ms. Reynolds did not consider using a peer review committee because she considered this case to be a reimbursement dispute, albeit a reimbursement dispute involving a claim of overutilization. At the request of Ms. Reynolds, Agency employee Sharon Ringo searched the Agency's computer database of EMAs for chiropractors with similar specialties as Dr. Selley. Through that search, Ms. Ringo identified Paul Vogel, D.C., and Dr. Harris as potential EMAs. Ms. Reynolds contacted Dr. Vogel and Dr. Harris to determine whether they would be willing to serve as EMAs in this case. Dr. Vogel accepted, and on May 17, 2001, Ms. Reynolds forwarded him copies of the records submitted to the Agency by Dr. Selley as well as the stipulation approved by the JCC in 1991, a copy of Section 440.13, Florida Statutes, and a copy of the Agency's EMA rules. The materials provided to Dr. Vogel by the Agency did not include any records from the Claimant's prior chiropractors except Dr. Turner. Dr. Harris declined to serve as an EMA because of his prior review of Dr. Selley's records for Petitioner. Accordingly, Ms. Reynolds asked Ms. Ringo to search the Agency's computer database for another potential EMA. Through that search, Ms. Ringo identified Randolph Harding, D.C. Ms. Reynolds then contacted Dr. Harding to determine whether he would be willing to serve as an EMA in this case. Dr. Harding accepted, and on June 19, 2001, Ms. Reynolds forwarded him copies of the records submitted to the Agency by Dr. Selley as well as the stipulation approved by the JCC in 1991, a copy of Section 440.13, Florida Statutes, and a copy of the Agency's EMA rules. The materials provided to Dr. Harding by the Agency did not include any records from the Claimant's prior chiropractors except Dr. Turner. The Agency notified Petitioner of its selection of the EMAs on the same date that it sent the records to the EMAs. (The substance of the letters sent to Petitioner is more fully discussed below.) The letters sent to Dr. Vogel and Dr. Harding by the Agency explained the scope of their review as follows: The review of the Expert Medical Advisor should focus on answering the question of whether the treatment that was rendered by Dr. Selley to this injured worker is consistent with the accepted standard of medically necessary treatment and delivered in a manner that would be consistent with the Workers' Compensation Law. If the treatment is not judged to be consistent with the definition, the date after which treatment is not deemed to be medically necessary. [sic] Petitioner "Petitions" Agency Under Section 440.13(8) By letter dated June 18, 2001, Petitioner requested the Agency to "address a pattern and practice of overutilization" by Dr. Selley in connection with his treatment of the Claimant. The letter summarized the conclusions of the peer review reports obtained by Petitioner from Dr. Barringer, Dr. Harris, and Dr. Costello. The letter requested that the Agency "make a final determination in accordance with Section 440.13(8)(a), and requests penalties as provided by [Section] 440.13(8)(b), Florida Statutes." The letter was accompanied by the notebook referenced above which contained the records from the Claimant's prior chiropractors as well as the peer review reports prepared for Petitioner as part of its utilization review process. As noted above, the Agency did not forward this information to the EMAs. Dr. Selley responded by letter dated July 17, 2001. In that letter, he detailed his treatment of the Claimant and expressed a desire to file a complaint with the Agency against Petitioner based upon "the arbitrary and unreasonable manner in which the carrier has been acting." The record does not reflect what action, if any, the Division took on Petitioner's letter and Dr. Selley's response. The wording of the Agency's August 24, 2001, determination letter (set forth below) and the fact that the Agency did not forward the notebook provided by Petitioner to the EMAs suggests that the Agency resolved the Section 440.13(8) issue without the input of the EMAs. The EMAs' Reports Dr. Vogel submitted his report to the Agency on June 11, 2001 (25 days after he was sent the materials by the Agency). The report provides in pertinent part: A review of [Dr. Selley's] medical report and daily treatment (patient care notes) would indicate that he rendered treatment which was consistent with Florida Workers' Compensation Law. The services appeared to be documented by the data presented. The diagnosis appeared to conform to the back complaints presented and examination performed. His patient care notes are proper, utilizing the accepted S.O.A.P. procedure and further indicating that the patient previously received a PPI rating of 5% and additionally he was being treated PRN with no scheduled appointments. Accordingly, Dr. Vogel was of the opinion that "Dr. Selley rendered treatment within the parameters consistent with the Florida [Workers'] Compensation Law." Dr. Vogel reaffirmed his opinion through his testimony at the hearing. Also on June 11, 2001, Dr. Vogel submitted an "addendum" to his report to the Agency. The "addendum" was provided for "informational purposes only" and addresses issues well beyond the scope of this proceeding (e.g., the wisdom of Petitioner's decision to enter into the settlement in the first instance). Accordingly, no weight is given to the "addendum." At some point thereafter, Petitioner directly provided Dr. Vogel a more comprehensive set of the Claimant's medical records, including the clinical records from all of the Claimant's prior chiropractors as well as the peer review reports from Dr. Barringer, Dr. Harris, and Dr. Costello. Dr. Vogel testified at the hearing that those records did not change the opinion he provided in his June 11, 2001, report to the Agency. In his view, the Claimant's prior treatment history was not relevant; instead, the relevant consideration is simply whether the treatment rendered by Dr. Selley was appropriate to the complaint presented by the Claimant on each occasion. As discussed elsewhere in this Recommended Order, Dr. Vogel's view is both legally and factually too narrow and is therefore rejected. Dr. Harding submitted his report to the Agency on July 20, 2001 (32 days after he was sent the materials by the Agency). The report provides in pertinent part: The initial examination of 3/20/96 performed by Dr. Selley does not reflect any significant positive physical findings to suggest progressive injury or active disease process. Review of the daily clinical notes does not record any positive neurological findings to indicate sensory or motor loss or other physical findings to indicate progressive injury. The visit on 2/20/01 appears to be an exacerbation of increased severity, however no significant neurological findings are reported. The physical findings at the follow up visits are typical of previous visits. Typically this patient presented with findings of tightness and tenderness upon palpation of the lumbar spine. It is my opinion, based on the clinical records reviewed, this patient is no longer responding to chiropractic treatment. [The Claimant] has continued to treat approximately once a week for over 15 months and there is no significant change in the overall symptom pattern or subjective complaints. No significant objective findings are present to explain the patient's ongoing subjective complaints. Continued failure of this patient to respond to chiropractic treatment for exacerbation of his symptoms after 15 months of care should result in patient discharge and other forms of treatment or management should be considered. (emphasis supplied). Despite those comments, Dr. Harding's report concludes with the following opinion: [T]he care rendered through 3/28/01 was medically necessary . . . . The treatment rendered through 3/28/01 appears to be consistent with the accepted standard of medically necessary treatment and delivered in an appropriate manner consistent with Florida's Worker's Compensation Law. Treatment beyond 3/28/01, in my opinion, is not reasonable or medically necessary and is not consistent with the accepted standards. Dr. Harding reaffirmed his opinion through his testimony at the hearing. However, neither his report nor his testimony (nor the testimony of the other chiropractic experts) established a medical or chiropractic basis of the March 28, 2001, date he chose as the cut-off for medical necessity. Unlike Dr. Vogel, Dr. Harding conceded at the hearing that the Claimant's prior chiropractic treatment – both its type and its frequency -- is "significant" information which could have affected his opinion. The importance of reviewing the Claimant's complete treatment history in evaluating the disputed dates of service was reaffirmed through the testimony of Dr. Harris, Dr. Costello, Dr. Barringer, and Gene Jenkins, D.C. (from a chiropractic perspective), and by Mollie Frawley (from a utilization review perspective). Petitioner provided Dr. Harding the same set of records that it provided Dr. Vogel (and its expert witnesses), but Dr. Harding did not review those records in formulating his report. In light of Dr. Harding's concession about the potential significance of the Claimant's treatment history, his failure to consider those records undermines the credibility of the opinions expressed in his report and his testimony at the hearing. Neither the EMAs nor the Agency provided copies of the reports to Petitioner after their preparation. The record does not reflect how or when Petitioner received copies of the EMAs' reports. The EMAs did not collaborate with each other in their review of the Dr. Selley's records or the preparation of their reports. In this regard, the EMAs functioned differently than a "peer review committee" and (contrary to a legal argument made by Respondent at the outset of this proceeding) the Agency witnesses who testified at the hearing did not consider the EMAs to be such a committee. Peer review committees were used by the Agency prior to 1994 to resolve disputes involving medical necessity of treatment in the workers' compensation context. The committee consisted of three to five doctors with similar licenses and specialties as the doctor under review. The committee would hear cases and develop a consensus recommendation to the Agency based upon the discussion and debate amongst the members of the committee. This process allowed for resolution of divergent opinions of the reviewers and resulted in a uniform opinion and report upon which the Agency could act. The Agency, not the carrier, was responsible for the fees of the doctors who served on the peer review committee. Agency's Determination Letter After receiving the EMAs' reports, Ms. Reynolds reviewed them for consistency. She determined that they were consistent even though Dr. Harding identified a date after which continued treatment was not medically necessary and Dr. Vogel did not identify such a date. Thereafter, Ms. Reynolds prepared the Agency's determination letter based upon her synthesis of the EMAs' reports. The determination letter, dated August 24, 2001, provided in pertinent part: Based upon the review of the peer review opinions, the [Agency] finds that the documentation of care rendered by Dr. Selley for these cited dates and through March 28, 2001 was medically necessary and related to the workers' compensation accident of May 23, 1990. Therefore, the [Agency] has determined that there is not a pattern or practice of overutilization and finds that the insurer has disallowed payment improperly. The insurer shall reimburse Dr. Selley for the treatment previously cited as disallowed within thirty (30) days of receipt of this notification and shall report the date and amount of the payments made. Treatment beyond March 28, 2001, however, does not appear to be reasonable or medically necessary and is not consistent with the accepted standards as documentation supports that this patient is no longer responding to the chiropractic treatment offered. There is no significant change in the overall symptom pattern or subjective complaints. Additionally, there are no objective findings present to explain the patient's ongoing subjective complaints. Continued failure of the patient to respond to chiropractic treatment for exacerbations of his symptoms after 15 months of care should result in consideration of other forms of treatment or management. (emphasis supplied). The letter was sent by certified mail to Petitioner and Dr. Selley, and it was received by each of them on August 27, 2001. The August 24, 2001, letter included the notice required by Chapter 120, Florida Statutes, and the Uniform Rules Procedure that "a party substantially affected by this determination has a right to request a hearing." Payment of EMAs As noted above, the Agency informed Petitioner by letters dated May 17, 2001, and June 19, 2001, that it had referred Dr. Selley's "petitions" to Dr. Vogel and Dr. Harding, respectively, to "perform a peer record review" as EMAs pursuant to Section 440.13(9), Florida Statutes. The letters informed Petitioner that it would be required to pay the EMAs' fees. With respect to the timing of that payment, the letters stated: Upon receipt of the EMA invoices and copies of the reports, the carrier shall reimburse the EMAs within 45 days pursuant to rule 38F-54.008, Florida Administrative Code (F.A.C.). Reimbursement by the carrier for EMA services shall not exceed $200 per hour or a maximum reimbursement of $1600 per case. Pursuant to s. 440.13(9)(f), Florida Statutes (F.S.), the division may assess a penalty not to exceed $500.00 against any carrier that fails to timely compensate an EMA. No further action is required until you receive the division's final determination letter regarding the reimbursement dispute. (emphasis supplied). Thus, Petitioner's obligation to pay the EMAs' fees did not mature until the Agency issued its determination letter on August 24, 2001. The record does not include the EMAs' invoices, nor does it reflect whether Petitioner has paid the EMAs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order that: Directs Petitioner to reimburse Dr. Selley for the January 19, 2001, and February 2, 2001, dates of service as it agreed to do in the first and second notices of disallowance; Denies Dr. Selley's "petitions" with respect to all of the other dates of service set forth in the notices of disallowance; and Directs Petitioner to reimburse the expert medical advisors in accordance with Section 440.13(9)(f), Florida Statutes, and the Agency's rules. DONE AND ENTERED this 26th day of August, 2002, in Tallahassee, Leon County, Florida. T. KENT WETHERELL, II 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 26th day of August, 2002.
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
The Issue Whether Petitioner should receive a passing grade for the Florida Optometry Licensure Examination taken on July 23 through 25, 2004.
Findings Of Fact Dr. Cook is a licensed optometrist in the State of Michigan. She received her Doctor of Optometry degree in 1985, and became licensed in the same year. Dr. Cook has taken the Michigan, Illinois, and Wisconsin state licensure examinations and passed all three examinations on her first try. For 17 years, Dr. Cook practiced optometry at the University of Michigan Health Services. This was a comprehensive practice, including eye examinations with dilation, treatment of eye diseases, emergency care, and the monitoring and follow-up care of patients with glaucoma, cataracts, and other diseases. Except for providing care to family members, Dr. Cook has not practiced professionally, on a regular basis, since August 2001, when she moved to Florida. Dr. Cook is a Fellow of the American Academy of Optometry. She was accepted at the final hearing as an expert in optometry. Dr. Cook desires to become licensed in Florida to practice optometry. As part of the process to apply for licensure in Florida, Dr. Cook is required to retake parts one and two of the national board examinations and to pass the Florida examination for licensure. She retook the national board examinations and passed on the first try. In August 2003, she took the clinical portion of the Florida examination and failed. In July 2004, Dr. Cook retook the clinical portion of the Florida examination. A passing score on the clinical portion is 80. She scored 75.75 on the July 2004 examination, and, thus, failed the clinical portion. For the clinical examination, Dr. Cook was required to bring her own "patient" upon whom some of the examination's required procedures were required to be performed. Some of the procedures are performed on "patients" brought by other candidates taking the examination. The grading on each procedure in the clinical examination is done by two examiners who are licensed, practicing optometrists. A candidate will be graded by a different set of examiners for the morning and afternoon sessions. The examiners are chosen by the Board of Optometry and trained by the Department's Testing Services Unit and outside practitioner consultants prior to the administration of each examination. The examiners are provided with a set of Grading Standards for their use during the grading of the examination. The purpose of the training and standards is to make the grading process objective and to provide grading uniformity and consistency. The examiners are required to grade and mark their scores independently. They are not to compare or discuss their scoring with other examiners at any time. If both examiners' grades agree, the candidate is given either no credit or full credit, depending on whether the examiners considered the procedures were properly performed. If the examiners disagree on the grading, the candidate is given the average of the two grades actually awarded, which is the sum of the two grades divided by two. If an examiner considers that a procedure is properly performed, the examiner marks the grade sheet with a "Y," indicating a yes. Examiners are taught to give the candidates the benefit of the doubt in borderline cases. If an examiner feels that the performance was borderline, the examiner must indicate "borderline" in the comment section on the grade sheet and specify the reason. If an examiner determines that the candidate did not properly perform the procedure, the examiner marks the grade sheet with an "N," indicating a no. An examiner is required to specify the reason for a no grade in the comment section on the grading sheet. Some of the procedures are performed once for both examiners. Other procedures are performed in groups, meaning that the procedures are performed twice, once before each of the examiners. In grouped procedures, the first examiner will read the directions for a procedure, and the candidate will perform the procedure after the directions are given. The first examiner will read the directions for the next procedure, and the candidate will perform the procedure after the directions are read. This format continues until the grouped segment is completed. The same procedures will then be performed for the second examiner, following the same format used by the first examiner. No records are kept to indicate which examiner graded first or second during any part of the examination. The examination candidate has control over when each examiner grades the candidate. When the candidate is ready to be graded, the candidate is required to say, "Grade me now." Dr. Cook has challenged the grades that she received for the following procedures: confrontational field test; measurement of pupil size; rating patient's response to light; demonstrating the equator and posterior pole during the binocular indirect ophthalmoscopy examination; the anterior vitreous portion of the biomicroscopy examination of the anterior segment; the choroidal crescent, posterior vitreous detachment, A-V three crossings out find and reflex, and hypertensive changes portion of the biomicroscopy examination of the fundus; and measuring eye pressure using a Goldmann Tonometer. A confrontational field test is a gross neurological field test in which the candidate compares her visual field to the patient's to pick up gross neurological defects. The Candidate Information Booklet (CIB) states that the confrontational field test is to be performed as described in Clinical Opthalmology by J.D. Duane. In order to perform this test, the candidate sits in front of the patient about a meter away. The patient covers one eye and looks at the candidate's eye, nose, or other structure so that the patient's gaze is not moving around. The candidate puts her non-moving fingers in different quadrants to test the patient's ability to see the fingers. It is important to keep the fingers stationary while performing the test because moving fingers could be detected by the patient even in a blind field. In other words, a patient who is not able to see a stationary finger may be able to detect a finger that is moving because the motion contributes to the detection. Dr. Cook performed the confrontational field test for both examiners simultaneously. She received .75 points out of a possible 1.5 points for the confrontation field test. Examiner 202 gave Dr. Cook full credit for the examination. Examiner 239 gave Dr. Cook no credit and noted the following in the comment section: "Moving fingers--Init performed 'wiggling fingers' while moving target fingers." Examiner 239 also noted "Did very brief static CF test but fingers moving not stationary." Dr. Cook admitted that she did wiggle her fingers during part of the performance of the examination, claiming that she was testing the patient's peripheral vision, which was not part of the examination. The examination was to be performed within the central 30 degrees. The preponderance of the evidence does not establish that Dr. Cook tested the four quadrants with non-moving fingers. Dr. Cook's score of .75 points is correct. As part of the clinical examination, the candidates are required to measure the size of the patient's pupil. In order to measure the pupil, the candidate must not sit in front of the patient. Sitting in front of the patient creates a stimulus for accommodation, which is a phenomenon where the pupil size changes unless the patient can look and focus on a target at a distance. Dr. Cook measured the pupil size of her patient simultaneously for both examiners. Examiner 202 gave Dr. Cook full credit for her performance in measuring the pupil size, and Examiner 239 did not give Dr. Cook credit for her performance. Examiner 239 noted in the comment section, "candidate sat in front of pt." Dr. Cook received .5 points out of a possible one point for measuring the pupil size during the pupillary examination. Dr. Cook claims that she sat off to the side of the patient, lined up her right eye with the patient's right eye, and asked the patient to sight at a target at a distance. The examiners were off to the side when Dr. Cook performed the procedure. The preponderance of the evidence does not establish that Dr. Cook was in the correct position when she measured the patient's pupil size. Dr. Cook's score of .5 is correct. As part of the examination, candidates are required to rate the patient's pupillary response to light on a pupillary scale. The CIB states, "Pupillary examinations, muscle balance, and motility, should be done on both eyes (including dilated eye)." Examiner 202 gave Dr. Cook full credit for rating the pupil, but indicated that her performance was borderline. Examiner 202 stated in the comment section: "borderline - she was confused about 0 to 4+, but eventually got it." Examiner 239 gave Dr. Cook no credit for her performance, and stated in the comment section: "4+ but did not indicate eye, not used to using 0 to 4 scale." Dr. Cook received .5 points out of a possible one point for rating the pupil on a pupillary scale. She gave the same answer simultaneously to both examiners. When Dr. Cook was asked to rate the pupils of her patient, Dr. Cook was uncertain which scale to use, the Marcus Gunn scale or a true light reflex scale. She indicated that she gave a response for both scales and that one of the responses was 4+. Dr. Cook stated at the final hearing that the left pupil was fixed and dilated, but she did not indicate that she rated the left eye as "0." The preponderance of the evidence does not establish that Dr. Cook advised the examiners of her rating of the left pupil. The score of .5 was correct. The binocular indirect ophthalmoscope (BIO) is an instrument used to examine the fundus, which is the inside back part of the eye. The BIO sits on the candidate's head. There is a small mirror attached, through which another viewer may see the view being seen by the candidate. The candidate holds a condensing lens, which is like a magnifying glass, to evaluate structures in the eye. Examining the fundus with the BIO is a simple procedure, which Dr. Cook performed 14 to 16 times every clinical day for over 17 years. Dr. Cook wore contact lenses during the examination. With the use of contact lenses, Dr. Cook has perfect vision. Dr. Cook adjusted the instrument before the testing procedure started, including adjusting the angle of light and setting the illumination. As part of the examination on the use of the BIO, a candidate is to demonstrate the equator and the posterior pole. In these procedures, the candidate finds the view of the applicable area, one examiner looks through the mirror after the candidate says "Grade me now," and then steps back. The second examiner then looks at the mirror after the candidate again says "Grade me now." Examiner 239 did not give full credit to Dr. Cook in demonstrating the equator. For the portion of the performance which requires the candidate to demonstrate an equator landmark, Examiner 239 gave Dr. Cook a "no" and stated in the comment section: "No clear view through the mirror @ 'Grade me now.'" Examiner 239 also gave Dr. Cook a "no" for an acceptable view of an equator landmark and stated in the comment section: "Dim illumination." Examiner 202 gave Dr. Cook credit for these two performance areas. In the portion of the examination in which the candidate is to demonstrate the posterior pole, the candidate is told that the disc and macula should be seen simultaneously. Examiner 239 did not give Dr. Cook credit for the portion of the examination where the disc and macula are to be viewed simultaneously. Examiner 239 stated in the comment section: "very dim view vis'd ONH not macula." Examiner 202 gave Dr. Cook credit for this portion of the examination. Between the first and second examiners' viewings for the equator and the posterior pole, the patient did not move, Dr. Cook held the focused view still, there was no change in illumination or intensity, and Dr. Cook did not change her position. Thus, it is more likely than not that Examiner 239 was mistaken. Dr. Cook received 3.5 points out of a possible seven points for examining the views of the equator and posterior pole during the binocular indirect ophthalmoscopy examination. She should be credited with an additional 3.5 points. As part of the examination, the candidates were asked to perform an examination using a biomicroscope, which is a microscope combined with a light source that is used to view different structures on the outside and inside of the eye. It is also called a slit lamp. For purposes of the licensure examination, the biomicroscope has a teaching tube attached through the left ocular, and when the examiner looks through the tube she sees the same view the candidate sees through the left ocular. A portion of the examination using the biomicroscope includes grouped procedures. The last procedure on one of the grouped procedures was focusing on the anterior vitreous of the patient's eye. The vitreous is made up of hyaluronic acid and contains vitreal strands made of collagen. As a person ages, the vitreal strands will increase and become more visible. A young patient may have vitreal strands that would be so difficult to see that on viewing the strands the view would appear to be "optically empty." In other words, the vitreous would appear clear on examination. Dr. Cook's patient was a healthy premed student in his early twenties. The patient did not have visible vitreal strands. Before performing the group of procedures, which included the focus of the anterior vitreous, Dr. Cook adjusted the height and width of the light. She set for a direct focal illumination, meaning the light was focused where she was looking. The patient remained still between the procedures, and Dr. Cook did not change the illumination between each grading. Examiner 216 gave Dr. Cook no credit for her focus of the anterior vitreous, stating the illumination was "too dim" and the "vit not seen." Examiner 268 gave Dr. Cook full credit for that part of the examination. Dr. Cook received 1.25 points out of a possible 2.5 points for her performance related to the anterior vitreous portion of the biomicroscopy exam of the anterior segment. Based on the patient's having no visible vitreal strands; the patient not moving between the grading procedures, and Dr. Cook not changing the illumination between grading procedures, it is more likely than not that Examiner 216 was mistaken. Dr. Cook should be awarded 1.25 points for performance of the focus on anterior vitreous. Dr. Cook received 3.5 points out of a possible seven points for her performance related to the choroidal crescent, posterior vitreous detachment, A-V three crossing outs, find and reflex, and hypertensive changes portion of the biomicroscopy exam of the fundus. One of the grouped portions of the examination using the biomicroscope included demonstrating whether a choroidal crescent was present. Determining the presence of a choroidal crescent was the fourth procedure in this grouped segment. A choroidal crescent can be seen when the candidate is looking at the optic nerve and the retina does not come all the way up to the nerve. The choroidal crescent will appear at the edge of the optic nerve. Examiner 268 did not give Dr. Cook any credit for determining whether the choroidal crescent was present, and stated in the comment section, "Did not focus on the edges of the ONH [optic nerve head]." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook did not demonstrate by the greater weight of the evidence that she should be given additional credit for this procedure. Unlike the evidence presented concerning the anterior vitreous, she did not establish that there was no change in illumination, her position, or the patient's position between the grading of the grouped segments. In order to perform the grouped procedures in which she was tested on the presence of the choroidal crescent, Dr. Cook had to move the focus and illumination to different locations related to the optic nerve. The last procedure in the same grouped segment involving the choroidal crescent was demonstrating posterior vitreous separation. Vitreous gel is attached to the back of the eye in several places. When the attachment points for the vitreous are pulled away or become loose, a ring-like structure can be seen where the vitreous pulled loose. Dr. Cook was asked to demonstrate and indicate whether a vitreous separation was present after she performed the procedure involving the choroidal crescent. The proper procedure for checking for posterior vitreous attachment would be to set the proper illumination, focus on the optic nerve, and pull back slightly on the "joy stick." Examiner 268 did not give Dr. Cook any credit for the procedure involving a demonstration of a posterior vitreous separation, stating in the comment section, "Did not pull back." Examiner 216 gave Dr. Cook full credit for the procedure. Again, Dr. Cook failed to establish by a preponderance of the evidence that she should be given additional credit for this portion of the examination. There was no showing that all conditions remained the same when each examiner graded this grouped segment of procedures. Another grouped segment of the examination called for Dr. Cook to start at the optic disc and follow a temporal arcade for a distance of approximately three disc diameters and demonstrate an AV crossing. Dr. Cook was to then indicate whether there were any characteristic hypertensive changes at the crossing. A vascular arcade is a curved shape with blood vessels coming out and arcing toward one another. Most of the blood vessels in the eye are located in this area. Some diseases such as diabetes and hypertension cause changes where the blood vessels in the arcade cross. In order to perform the AV crossing procedure, a candidate has to coordinate the microscope, going up and down and side by side. Lining up is critical on this procedure. Adjustments have to occur separately, once for each examiner. Examiner 268 did not give credit to Dr. Cook for this portion of the examination, stating in the comment section, "No view in the tube." Examiner 216 gave Dr. Cook full credit for the procedure. Dr. Cook has failed to establish that she is entitled to additional points for this portion of the examination. The AV crossing procedure involves making adjustments for each of the examiners as part of the examination, Dr. Cook has not demonstrated by a preponderance of the evidence that all conditions remained the same for each examiner. As part of the examination, candidates are tested on the use of the Goldmann Tonometer, which is a device used to measure eye pressure. The grading on this portion is divided into four categories: illumination at the proper angle, mires alignment, thickness of alignment, and the pressure measurement. Examiner 268 gave Dr. Cook full credit for all categories. Examiner 216 did not give credit to Dr. Cook for having the correct mires alignment, and gave full credit for the remaining categories, indicating that the mires width and the reading of the pressure were borderline. In the comment section, Examiner 216 drew the alignment which he viewed. The mires were not aligned correctly. Dr. Cook received 1.24-1.50 points out of a possible 2.5-3.0 points for the use of the Goldmann Tonometer. Dr. Cook argues that because she was given credit for the pressure reading that it would be impossible for the mires alignment to be incorrect. The reading of the pressure is to test the candidate's ability to read the dial on the tonometer; it is not to determine whether the reading that is on the dial is the actual pressure of the patient. The grading standards require that the examiner put down the reading that he saw during the viewing if it is different from the reading that the candidate gives as a response. Thus, it is possible to be given credit for the pressure reading without having the mires aligned correctly. Dr. Cook has not demonstrated by a preponderance of the evidence that she should be given additional credit for this portion of the examination. None of the examiners testified at the final hearing. The Department did call Dr. Gary McDonald, who was accepted as an expert in optometry.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered awarding Dr. Cook an additional 4.75 points for the clinical portion of the optometry licensure examination given on July 23 through 25, 2004, resulting in a passing grade of 80.25. DONE AND ENTERED this 30th day of June, 2005, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 30th day of June, 2005. COPIES FURNISHED: Edwin A. Bayó, Esquire Gray Robinson 301 South Bronough Street, Suite 600 Post Office Box 11189 Tallahassee, Florida 32302-3189 Allen R. Roman, Esquire Department of Health Office of General Counsel 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 R. S. Power, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
Findings Of Fact 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.
