The Issue At issue in this proceeding is whether Petitioner is entitled to a passing score on the Physical Diagnosis portion of the May 2001 chiropractic licensure examination.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a final order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the physical diagnosis portion. In May 2001, Petitioner sat only for the physical diagnosis portion, having passed all other portions in a prior examination. The physical diagnosis section is a practical examination that tests a candidate's competency to choose, name, demonstrate, and interpret diagnostic imaging and laboratory reports based on a hypothetical case history. The examination generally presents a case history, including the patient's complaint and vital signs, then asks a series of questions designed to lead to a diagnosis. The examination also asks some separate, stand-alone questions designed to elicit knowledge of specific techniques, such as how to obtain particular diagnostic imaging views. The physical diagnosis section of the May 2001 examination consisted of 26 tasks, for which varying numbers of points were awarded for correct answers. Two examiners evaluated the candidate's performance and independently awarded scores for each task. Petitioner's overall score was the average of the two examiners' scores. The examiners who scored Petitioner's performance on the physical diagnosis section met the criteria for selection as examiners. An examiner must have been licensed in Florida as a chiropractor for at least five years, must not have had a chiropractic or other health care license suspended, revoked, or otherwise acted against, and must not be currently under investigation by the Department or any other state or federal agency. Rule 64B2-11.007(1), Florida Administrative Code. The Department requires each examiner to attend a training session prior to administration of the examination. The training is designed to ensure that scoring standards are uniform and objective among the various examiners. The examiners who scored Petitioner's performance on the physical diagnosis section had successfully completed the training session. The first series of questions on the physical diagnosis section dealt with a female patient in her early thirties whose main complaint was constant, severe pain in her left calf. The patient's temperature was slightly elevated at 99.8ºF, and she had swelling in her left ankle. Ultimately, the candidate was expected to arrive at a diagnosis of thrombophlebitis, inflammation of a vein in the left calf. Tasks 1 and 2, for which Petitioner received full credit, required the candidate to obtain a case history from the patient and to discuss the physical examination the candidate would perform on the patient. Task 3 asked the candidate to identify what laboratory tests or diagnostic procedures, if any, should be used to assist in arriving at a diagnosis. Task 4 asked the candidate to state his reasoning for choosing these tests. The correct answer to Task 3 was that the candidate should order either an erythrocyte sedimentation rate (ESR) test or a C-reactive protein (CRP) test. The correct answer to Task 4 was that the ESR and CRP assess the inflammatory processes that the candidate should suspect in the patient's left calf. On Task 3, Petitioner responded that he would order a complete blood count (CBC) and a urinalysis. On Task 4, Petitioner responded that he chose these tests because the patient's increased temperature indicated that there might be an infection present, and that a CBC and urinalysis are useful tests for infection. Task 3 was worth a maximum of four points. Task 4 was worth a maximum of three points. Each examiner independently awarded Petitioner zero points for Task 3 and for Task 4. The results of the physical examination, particularly "Homan's sign," or pain in the calf with dorsiflexion of the foot, caused Petitioner to suspect thrombophlebitis. Petitioner knew of no laboratory test that returns a specific positive result for thrombophlebitis. He introduced textbook references to establish that the ESR and CRP tests are not specific to diagnosing thrombophlebitis. Petitioner did not believe that Tasks 3 and 4 gave him the option of ordering no laboratory tests at all, so he chose the most common tests that would at least confirm that no infection was present. Dr. Densmore, Respondent's expert, agreed with Petitioner that a positive Homan's sign is specific for diagnosing thrombophlebitis. However, he disagreed with Petitioner's choice of ordering a CBC and urinalysis. Dr. Densmore admitted that many doctors order these tests as a general standard for all patients, but stated that in this case they would do nothing to narrow the diagnosis. The CBC and urinalysis are useful for identifying infections; thrombophlebitis is an inflammatory disease, not an infectious disease. Dr. Densmore conceded that ESR and CRP are not specific to thrombophlebitis. However, Dr. Densmore believed that Petitioner should have chosen ESR or CRP because inflammation is present in 90 percent of thrombophlebitis cases and therefore those tests would assist the practitioner in arriving at a diagnosis. Petitioner should not be awarded credit for his answer to Tasks 3 and 4 because his answers were not the best answers to those questions. The correct answers set forth by the Department were supported by the textbook authorities and expert testimony introduced at the hearing. Task 5 dealt with the same patient discussed above, and asked the candidate to indicate which, if any, diagnostic imaging procedures should be performed. The correct answer, worth four points, was "none" or "A-P & lateral leg." "A-P" stands for anteroposterior, or from the front to the back. On the videotape of the examination, Petitioner appeared confused by the question. He said that he would x-ray the "lower leg." One of the examiners asked him to be more specific as to which views he would take. Petitioner stated that he would x-ray the ankle because of the swelling there. Petitioner then mentioned the swelling in the calf, and stated that he would x-ray the "femur." The femur is the thigh bone, extending from the pelvis to the knee. An x-ray of the femur obviously would reveal nothing about the condition of the patient's calf. The examiner, likely sensing Petitioner's confusion, advised Petitioner to read the question again. Petitioner read the question aloud, then reiterated that he would take x-rays of the patient's ankle and femur. Task 5 was worth a maximum of four points. Each examiner independently awarded Petitioner zero points for Task 5. Petitioner contended that he should have received partial credit for his initial response that he would x-ray the lower leg. However, Task 5 required the candidate to identify the specific views of the x-rays he would take. When the examiner asked him to name the specific views, Petitioner identified the femur. The context of the discussion makes it evident that Petitioner must have been thinking of the fibula or the tibia, i.e., the bones of the lower leg, when he repeatedly named the femur in connection with the patient's calf pain. However, the examiners had no choice but to grade Petitioner on the answer he actually gave. Petitioner should not be awarded any points for his answer to Task 5. Task 18 was a stand-alone question dealing with x- rays. The challenged portion of Task 18, worth two points, asked the candidate what he would do to obtain a quality lumbar spine x-ray of a severely obese patient if his office was equipped with a 300/125 x-ray machine. One of the examiners specified that this patient weighs around 500 pounds. The correct answer was that the candidate would use a higher capacity x-ray machine or refer the patient to a facility that has one. Petitioner's answer was that he would collimate close to the area of injury, decrease milliampere seconds (mAs), increase kilovolt peak (kVp) to increase penetration, and use a rare earth screen. Again, Petitioner appeared to be confused by the question. At the hearing, he testified that Task 18 did not ask what specific view he would take of the obese patient, whether of the arm, the chest, or the skull. Petitioner misread the question. Task 18 clearly states that the required view is of the patient's lumbar spine. Petitioner's misreading of the question led him to treat Task 18 as an x-ray physics question, hence his response, intended to demonstrate how he would maximize the clarity of an x-ray using the equipment at hand. Dr. Densmore stated that an x-ray of a patient this size taken on this equipment would simply be a white picture because of the amount of fatty tissue involved. With a patient of this size, the kVp would have to be increased so much that the practitioner would over-radiate the patient. The practitioner would have no choice but to send the patient out for an x-ray on a higher capacity machine. The examiners independently awarded Petitioner zero points for his response to this portion of Task 18. Their scoring was correct, supported by the textbook authorities and expert testimony introduced at the hearing. Petitioner alleged that the Candidate Information Booklet (CIB) provided him by the Department did not adequately prepare him for format changes that occurred since his first sitting for the examination. Petitioner compared the CIB for the May 2001 examination to that for the November 2001 examination. He found that the detailed sample questions in the November 2001 CIB more closely reflected the examination he took in May 2001, and contended that the May 2001 CIB was outdated at the time it was distributed. All candidates for the May 2001 examination received the same Candidate Information Booklet that Petitioner received. Respondent's psychometrician, Dr. Linda Dean, testified that the passing rate for the May 2001 examination was in the range of 70 percent, consistent with other administrations of the examination. Petitioner's allegation concerning the adequacy of the CIB is not supported by the evidence. Petitioner also alleged that he was placed at a disadvantage by the fact that the examiners appeared to know that he was not taking the examination for the first time. Both Dr. Dean, the psychometrician assigned to the chiropractic licensure examination, and Dr. Densmore, who has served as an examiner many times, testified that examiners are not told the names or the status of the candidates. Dr. Dean testified that nothing is done to segregate first-time candidates from those who are retaking the examination, though an examiner may suspect that a candidate who is sitting for only one section of the examination is retaking that section. Even if Petitioner's allegation were credited, it would not change the result. Petitioner's responses to Tasks 3, 4, 5, and 18 were incorrect. The examiners properly awarded him zero points for those tasks. Their knowledge that he was retaking the physical diagnosis section had no bearing on Petitioner's incorrect responses to the challenged tasks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for his responses to Tasks 3, 4, 5, and 18 of the physical diagnosis portion of the chiropractic licensure examination administered in May 2001. DONE AND ENTERED this 18th day of February, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 2002. COPIES FURNISHED: Ken Allan Niebrugge 4785 Barkley Circle No. 22 Fort Myers, Florida 33907 Cherry A. Shaw, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether Petitioner is entitled to credit for her response to Question 36 or for her response to Question 41 of the X-ray interpretation portion of the Chiropractic Licensure Examination administered in November 2000.
Findings Of Fact Pursuant to Chapter 456, Florida Statutes, Respondent is the agency of the State of Florida that develops, administers, scores, and reports scores for licensure examinations, such as the examination at issue in this proceeding. The Board of Chiropractic Medicine is created as a part of Respondent by Section 460.404(1), Florida Statutes. Pursuant to Section 456.013(4), Florida Statutes, this Recommended Order is to be forwarded to the Board of Chiropractic Medicine, which will enter a Final Order. Section 460.406(1), Florida Statutes, provides that anyone seeking licensure as a chiropractic physician must pass a licensure examination. The Florida Chiropractic Medicine Licensure Examination consists of two portions: (a) a practical examination and (b) a Florida Laws and Rules examination. The practical examination is further subdivided into three areas: (a) interpretation of chiropractic and pathology films (the X-ray portion), (b) physical diagnosis, and (c) technique. A candidate cannot be licensed as a chiropractic physician until he or she has passed all portions of the licensure examination, including the X-ray portion. The X-ray portion consists of 60 multiple-choice questions, with each question having four possible answers. A chiropractic or pathology film is displayed for each question. The candidates are instructed to select from four possible answers the best answer to the written question pertaining to the accompanying film. The candidates are given 90 seconds to answer each question. The X-ray portion of the examination tests minimal competency and does not provide the candidates a certification or specialty in the field of radiology. Petitioner received a failing score on the X-ray portion of the examination. A candidate must correctly answer 45 of the 60 scores to pass. Petitioner received credit for correctly answering 44 questions. If Petitioner is awarded credit for correctly answering Question 36 or Question 41, she will be entitled to a passing score on the X-ray portion of the examination as well as the over-all examination. The written portion of Question 36 described certain symptoms being experienced by a 60-year-old female. The X-ray depicted a patient whose trachea was deviated to the left of its usual position. Candidates were asked to select the answer that best responded to the question "what is your impression of the radiograph." The parties agree that two of the four answers were incorrect. The other two answers will be referred to as Answer A and Answer B. Answer A, the answer Respondent considered the correct answer, was that the radiograph showed the trachea was deviated to the left of its usual position. Answer B, the answer selected by Petitioner, is a possible reason the trachea was deviated to the left. Petitioner agrees that the radiograph showed that the trachea was deviated to the left, but argues that because the question asks for the candidate's impression, she should attempt to answer why the body part was deviated. 2/ The written portion of the question and the radiograph do not provide sufficient information for a candidate to determine that Answer B was the reason the trachea was deviated to the left. Additional testing would be required before a practitioner could reach a correct diagnosis for the cause of the deviation. Answer A was the best answer to Question 36. Petitioner should not be awarded credit for her answer to Question 36 because her answer was not the best answer to the question. The written portion of Question 41 advised that the candidate's examination of a patient did not find a reason for the patient's mild back pain. The candidate was required to select the best answer to the question "[w]hat does the X-ray disclose." The greater weight of the credible evidence established that the only correct answer was the answer selected by Respondent as being the correct answer. Petitioner concedes that the X-ray disclosed what Respondent asserted was the correct answer, but chose another answer because Respondent's answer would not account for the patient's pain. Petitioner chose the answer that the X-ray disclosed a bilateral fracture. There was a dispute among the experts as to whether the X-ray contained jagged lines, which would indicate a fracture. Respondent's expert testified that there were no significant jagged areas. Dr. Stern testified that there may be some jagged areas, but that further testing would be necessary to reveal a fracture. Dr. Richard Santo testified that there were jagged areas that disclosed a severe fracture. The conflicting evidence is resolved by finding that the X-ray did not clearly disclose an area that had been fractured and did not disclose a bilateral fracture. Petitioner should not be awarded credit for her answer to Question 41 because her answer was not the best answer to the question. Respondent's psychometrician evaluated the responses to Question 36 and Question 41, and found that both questions performed at an acceptable level. For Question 36, 77% of the candidates who took the examination with Petitioner chose Respondent's correct answer, while 17% of the candidates choose Petitioner's answer. For Question 41, 74% of the candidates chose Respondent's answer, and 24% chose Petitioner's answer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order denying Petitioner additional credit for her responses to Questions 36 and 41 of the X-ray portion of the Chiropractic Licensure Examination administered in November 2000. DONE AND ENTERED this 11th day of October, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 2001.
The Issue The issue in the case is whether Florida Administrative Code Rules 64B2-15.001(2)(e) and 64B2-15.001(2)(e)3. are invalid exercises of delegated legislative authority.
Findings Of Fact The Petitioner, a Florida-licensed chiropractor, is the subject of an Administrative Complaint filed against him by the Department of Health, Board of Chiropractic. The Administrative Complaint alleges that the Petitioner's letterhead identifies him as a "CICE (Certified Independent Chiropractic Examiner)" and that such designation requires a disclaimer as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e)3. The Administrative Complaint further alleges that the use of the designation constitutes a deceptive and misleading advertisement pursuant to Florida Administrative Code Rule 64B2- 15.001(2)(e). The Administrative Complaint was filed as the result of a complaint against the Petitioner filed by another chiropractor. The American Board of Independent Medical Examiners (ABIME) bestows the designation "CICE" on chiropractors. Some chiropractors such as the Petitioner obtain the designation by completing a 20-hour course over a weekend and then passing a test. A witness for the Respondent, Dr. Ronald Lee Harris, obtained the designation by working with the ABIME on reviewing examination questions used by the ABIME and has not completed any course of training related to the CICE designation. Another witness for the Respondent, Dr. Stanley Kaplan, testified that he was listed on the ABIME website with the CICE designation, but that he was unaware of the designation until the day prior to the hearing and has not completed any course of training related to the CICE designation. Florida Administrative Code Rule 64B2-15.001(2)(e) provides as follows: 64B2-15.001 Deceptive and Misleading Advertising Prohibited; Policy; Definition. (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading if it: * * * (e) Conveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, possess qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialities recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each speciality requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any specific chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that “The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine.” The Petitioner asserts that the phrase "other than a simple listing of earned professional post-doctoral or other professional achievements" as set forth at Florida Administrative Code Rule 64B2-15.001(2)(e) is vague and fails to properly apprise a reasonable person as to what is prohibited. The Respondent presented the expert testimony of three witnesses during the hearing. Two of the three witnesses offered differing opinions as to what constitutes "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Stanley Kaplan testified that the phrase would permit a chiropractor to list only his chiropractic degree, but also indicated that a "simple listing" could include any items a chiropractor would include on a curriculum vita. Dr. Ronald Lee Harris testified that the phrase includes only the chiropractic degree and that listing "achievements" other than a degree and Diplomate status would require inclusion of the language related to the awarding entity's lack of affiliation with or recognition by the Florida Board of Chiropractic Medicine (the "disclaimer language"). Dr. Harris testified that the information set forth on a curriculum vita would not be properly included in "a simple listing of earned professional post-doctoral or other professional achievements." Dr. Steven Willis testified that the phrase "simple listing of earned professional post-doctoral or other professional achievements" could be viewed as vague if considered outside the context of the remainder of the rule section, but asserted that the language set forth in subsection 3 of Florida Administrative Code Rule 64B2- 15.001(2)(e) clarified the phrase. Dr. Willis' testimony was credible and is accepted. Based on the testimony of Dr. Steven Willis and a contextual reading of the Rule, Florida Administrative Code Rule 64B2-15.001(2)(e) is not vague. The evidence establishes that the reference to "a simple listing of earned professional post-doctoral or other professional achievements" achievements in Florida Administrative Code Rule 64B2-15.001(2)(e) is limited by subsection 3 to require inclusion of a disclaimer in certain specific circumstances. Clearly a chiropractor can advertise the fact that he has received a doctorate in chiropractic medicine. A chiropractor may also advertise "earned professional post- doctoral or other professional achievements," whether or not the Board of Chiropractic Medicine has recognized the conferring entity. In the event the Board has not recognized the conferring entity, the advertising chiropractor must include the disclaimer language when the designation connotes "recognition as a specialist in any specific chiropractic or adjunctive procedure." The Petitioner further asserts that Florida Administrative Code Rule 64B2-15.001(2)(e)3. is vague because the phrase "specialist in any specific chiropractic or adjunctive procedure" is capable of multiple interpretations. The evidence establishes that, within the context of the Rule, "specialist in any specific chiropractic or adjunctive procedure" has sufficient meaning to convey who is being identified and is therefore not vague. The Rule requires only that where an advertising chiropractor represents himself to be a specialist in any chiropractic or adjunctive procedure by virtue of a "certification" from an unrecognized entity, the advertising must include the disclaimer language that the certification was received from a "private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine."
Findings Of Fact The Petitioner took the chiropractic licensure practical examination administered in November of 1989 and received a score of 71.2%. The minimum passing score was 75%. The Petitioner needs 1.5 additional raw score points in order to obtain a minimal passing grade. The Petitioner challenged portions of the practical portion of the chiropractic examination. The practical examination includes the areas of x-ray technique, chiropractic technique, and physical diagnosis. Stephen Ordet, D.C., testified on behalf of the Respondent. He was received as an expert in chiropractic medicine (TR, page 117, line 19). He testified that he has been an examiner for the Florida chiropractic practical examination since approximately 1980 (TR, page 102, line 18). The practical portion of the chiropractic examination was administered to the Petitioner by two of several doctors of chiropractic, who were examiners at this examination. The practical examination questions asked the Petitioner were developed by the two examining doctors. The various areas which can be included on the technique examination include cervical, lumbar, thoracic, occipital, pelvic, rib, soft tissue, and extremities. The examiners' questions to the Petitioner did not address the lumbar, occipital or rib areas. Examiner No. 12 gave the Petitioner a score of 4 on cervical, 3 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 1 on extremities. Examiner No. 13 gave the Petitioner a score of 4 on cervical, 3.5 on thoracic, 3 on pelvic, 2.5 on soft tissue, and 2 on extremities. Each portion of the examination has a possibility of 4 points. A candidate must average 3 points fob each question on the examination or a score of 75%. The school which the Petitioner attended is an accredited school. The Petitioner's responses to various questions from the examiners were scored by the examiners under more than one phase of the examination. The Petitioner received a grade of 4 (excellent) from both examiners on the cervical portion of the examination. The Petitioner's expert witness testified that the Petitioner's responses to the questions on the pelvic and thoracic were complete answers. The grades given the Petitioner by one of the examiners were 3.5 and 3, and the grades given by the other examiner were 3 and 3. The grades given are consistent with the petitioner's expert's characterization of her performance. There is no evidence that these questions or grading were arbitrary or capricious. The Petitioner was given an extremities question, and she began an examination of the patient. Thereafter, she advised the examiners that her school had not taught adjustment of the extremities and had not known she would be examined in this area. Additional evidence presented at the bearing shows that extremities were not taught at the Petitioner's school when she attended based upon the school's philosophy relating to spinal adjustment. The two remaining areas addressed in the practical portion of the examination were soft tissue and extremities. Grader 13 scored the Petitioner 2.5 on soft tissue and 2 on extremities. Grader 12 scored the Petitioner 2.5 on soft tissue and 1 on extremities. Dr. Ordet opined that extremity technique as a necessary part of chiropractic medicine (TR, page 100, line 11). He referred to several technique books in chiropractic to support the necessity of extremity technique. The text books included Anatomical Adjustment Techniques by Dr. Homer Beatty. One of the examiners responded that they would move onto another area and gave her a new question referring back to the patient with torticollis. The responses by the Petitioner regarding manipulative relief of the torticollis were not addressed by the Petitioner's witness. There is no basis for concluding that the examiners were clearly erroneous in their evaluation of the Petitioner's response. The Respondent's expert witness revealed that the examination did not place special emphasis on the technique taught at the candidate's particular college.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the extremities question be stricken from the techniques attempted; the Petitioner receive the average of her remaining techniques scores; and receive a passing score on the examination. DONE AND ENTERED this 15th day of February, 1991, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-3398 Petitioner's Proposed Findings of Fact Adopted and renumbered. Adopted and renumbered. Rejected. The state of the Petitioner's health when this examination was given is conjectural. The Petitioner was given added credit upon a review of her examination; however, one cannot say the examiners were unfair. The testimony about the amount of time for each examination is conflicting. The Petitioner did not clearly establish this point. True but irrelevant. Contrary to the facts. Contrary to the facts. True but irrelevant. Respondent's Proposed Findings of Fact Adopted and rewritten. Not a finding. Not a finding. Adopted and rewritten. Adopted. Adopted in part, rewritten in part, and rejected in part. Adopted first sentence. Adopted. Adopted. COPIES FURNISHED: Ms. Patricia Guilford Executive Director Board of Chiropractic Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Jack McRay, Esq. General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 Lois Buxbaum 23 Jones Street, #19 New York, NY Vytas J. Urba, Esq. Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792 =================================================================
The Issue The issue is whether Petitioner, Jens Emilio Valle, is entitled to licensure by virtue of a passing grade on the May 1988 Chiropractic examination, specifically on the technique portion of the examination.
Findings Of Fact Dr. Valle was an unsuccessful candidate for the May 1988 Chiropractic examination. As part of the practical examination, Dr. Valle took the technique portion and received a score of 73.9. A score of 75 is required for certification for licensure. The technique portion is part of an oral practical examination and is subjectively graded by two independent graders. All graders have been licensed to practice chiropractic medicine in Florida for at least five years and have received several hours of standardization training prior to serving as graders on the practical examination. The grade range on each section is one to four. A score of three is assigned when a candidate demonstrates minimal competency and a score of four is given when a candidate demonstrates superior or expert knowledge. These scores are then added with other factors and scores to produce a total. Dr. Valle claims that he was underscored on the technique portion of the examination. His scores were as follows: Grader 27--Cervical (3), thoracic (3), occipital (3), pelvic (2), rib (3), and soft tissue (3.5). Grader 37--Cervical (3), thoracic (3), occipital (3), pelvic (3), rib (3), and soft tissue (3). Dr. Valle presented the expert testimony of Jim Terrell, D.C., who has been licensed in Florida for less than five years. Dr. Terrell has received no training in grading practical examinations. He has never participated in the administration and grading of a chiropractic examination for licensure. Dr. Terrell based his testimony solely on his observation of the videotape. His opinion was that Dr. Valle's performance in the pelvic technique was "essentially" correct. Dr. Terrell's opinion related solely to the mechanical performance. Steven M. Ordet, D.C., is a chiropractic physician licensed in Florida since 1974. He is the past Chairman of the Peer Review Committee of the Florida Chiropractic Association, a Director of the Florida Chiropractic Association, and has been an examiner for the chiropractic examination for the last seven years. He was not an examiner on the May 1988 examination. Dr. Ordet also reviewed the videotape. In his opinion as a trained grader, he would have awarded the following scores based on Dr. Valle's performance: Cervical (3), thoracic (2.5), occipital (3), pelvic (2), rib (3), and soft tissue (2.5). Dr. Ordet would have given these scores in part because Dr. Valle failed to describe the technique he was demonstrating. The preliminary instructions given for the examination and shown on the videotape require, in part, that the candidate describe the technique as it is demonstrated. The opinion of Dr. Ordet is persuasive based on his experience as a grader and on his explanation for the grades he would give.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Chiropractic Examiners, enter a Final Order denying the request for relief filed by Jens Emilio Valle and dismissing the petition for relief. DONE and ENTERED this 17th of August 1989, in Tallahassee, Florida. DIANE K. KIESLING 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 17th day of August, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-0886 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Professional Regulation, Board of Chiropractic Examiners 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-4 (1-7). COPIES FURNISHED: E. Harper Field Deputy General Counsel Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jens Emilio Valle, D.C. 901 Cedar Canyon Square Marietta, GA 33067 Patricia Guilford Executive Director Board of Chiropractic Examiners Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Department of Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Florida Administrative Code Rule Subsections 64B2-15.001(2)(e), (i), and (l) constitute an invalid exercise of delegated legislative authority in that they exceed Respondent's rulemaking authority or enlarge, modify, or contravene the law the Rule implements.
Findings Of Fact Petitioner Michael John Badanek, D.C., is a duly licensed chiropractic physician in the State of Florida. Dr. Badanek actively practices in Ocala, Florida. Dr. Badanek has engaged in and is engaging in, the advertising of professional services to the public. Dr. Badanek is subject to the provisions of Chapter 460, Florida Statutes, and the rules promulgated by Respondent. Dr. Badanek's failure to adhere to the provisions of Chapter 460, Florida Statutes, and the rules promulgated thereunder, including the Challenged Rule Subsections, may result in the discipline of his professional license. Dr. Badanek has standing to challenge the Challenged Rule Subsections. The affected state agency is the Board of Chiropractic Medicine (hereinafter referred to as the "Board"), located at 4052 Bald Cypress Way, Tallahassee, Florida. The Board is charged by Chapter 460, Florida Statutes, with the duty of regulating the chiropractic profession in Florida. In carrying out that duty, the Board has adopted Florida Administrative Code Rule Chapter 64B2. At issue in this matter is the Challenged Rule Subsections of Florida Administrative Code Rule 64B2-15.001. The Challenged Rule Subsections provide the following: 64B2-15.001 Deceptive and MisleadingAdvertising Prohibited; Policy; Definition. . . . . (2) No chiropractor shall disseminate or cause the dissemination of any advertisement or advertising which is in any way fraudulent, false, deceptive or misleading. Any advertisement or advertising shall be deemed by the Board to be fraudulent, false, deceptive, or misleading, if it: . . . . (e) Coveys the impression that the chiropractor or chiropractors, disseminating the advertising or referred to therein, posses qualifications, skills, or other attributes which are superior to other chiropractors, other than a simple listing of earned professional post-doctoral or other professional achievements. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a chiropractic specialty area recognized by the Board of Chiropractic. Chiropractic Specialties recognized by the Board are those recognized by the various Councils of the American Chiropractic Association or the International Chiropractic Association. Each specialty requires a minimum of 300 hours of post-graduate credit hours and passage of a written and oral examination approved by the American Chiropractic Association or International Chiropractic Association. Titles used for the respective specialty status are governed by the definitions articulated by the respective councils. A Diplomate of the National Board of Chiropractic Examiners is not recognized by the Board as a chiropractic specialty status for the purpose of this rule. A chiropractor who advertises that he or she has attained recognition as a specialist in any chiropractic or adjunctive procedure by virtue of a certification received from an entity not recognized under this rule may use a reference to such specialty recognition only if the board, agency, or other body which issued the additional certification is identified, and only if the letterhead or advertising also contains in the same print size or volume the statement that "The specialty recognition identified herein has been received from a private organization not affiliated with or recognized by the Florida Board of Chiropractic Medicine." A chiropractor may use on letterhead or in advertising a reference to any honorary title or degree only if the letterhead or advertising also contains in the same print size or volume the statement "Honorary" or (Hon.) next to the title. . . . . (i) Contains any representation regarding a preferred area of practice or an area of practice in which the practitioner in fact specializes, which represents or implies that such specialized or preferred area of practice requires, or that the practitioner has received any license or recognition by the State of Florida or its authorized agents, which is superior to the license and recognition granted to any chiropractor who successfully meets the licensing requirements of Chapter 460, F.S. However, a chiropractor is not prohibited from advertising that he has attained Diplomate status in a specialty area recognized by the Board, or . . . . (l) Contains a reference to any other degree or uses the initials "M.D." or "D.O." or any other initials unless the chiropractic physician has actually received such a degree and is a licensed holder of such degree in the State of Florida. If the chiropractic physician licensee is not licensed to practice in any other health care profession in Florida, the chiropractic physician must disclose this fact, and the letterhead, business card, or other advertisement shall also include next to the reference or initials a statement such as "Not licensed as a medical doctor in the State of Florida" or "Licensed to practice chiropractic medicine only" in the same print size or volume. . . . . The authority cited by the Board as its "grant of rulemaking authority" for the Challenged Rule Subsections is Section 460.405, Florida Statutes, which provides: Authority to make rules.--The Board of Chiropractic Medicine has authority to adopt rules pursuant to ss 120.536(1) and 120.54 to implement the provisions of this chapter conferring duties upon it. The Board has cited Sections 456.062 and 460.413(1)(d), Florida Statutes, as the "law implemented" by the Challenged Rule Subsections. Section 456.062, Florida Statutes, provides: Advertisement by a health care practitioner of free or discounted services; required statement.--In any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care practitioner licensed under chapter 458, chapter 459, chapter 460, chapter 461, chapter 462, chapter 463, chapter 464, chapter 465, chapter 466, chapter 467, chapter 478, chapter 483, chapter 484, chapter 486, chapter 490, or chapter 491, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT THAT IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. However, the required statement shall not be necessary as an accompaniment to an advertisement of a licensed health care practitioner defined by this section if the advertisement appears in a classified directory the primary purpose of which is to provide products and services at free, reduced, or discounted prices to consumers and in which the statement prominently appears in at least one place. Section 460.413(1)(d), Florida Statutes, provides the following ground for disciplinary action: "False, deceptive, or misleading advertising." While neither this provision nor any other specific provision of Chapter 460, Florida Statutes, imposes a specific duty upon the Board to define what constitutes "false, deceptive, or misleading advertising," the Board is necessarily charged with the duty to apply such a definition in order to carry out its responsibility to discipline licensed chiropractors for employing "false, deceptive, or misleading advertising."
The Issue Whether the Petitioner should receive a passing grade on the chiropractic licensure examination administered November 13 through 16, 1996.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: At the time the examination at issue herein was administered, the Agency for Health Care Administration was responsible for administering examinations to certain professionals, including chiropractic physicians, seeking to be licensed to practice in Florida. Sections 20.42(2)(a)2, 455.2141, and 455.2173, Florida Statutes. Dr. Foss sat for the chiropractic licensure examination administered in November, 1996. Part of that examination tested a candidate's competency in physical diagnosis and consisted of an oral practical examination administered to each candidate by a panel of two examiners. A standardization system was used with the examination to create consistency in the questioning and grading of the various examiners. Each examiner was given a manual which identified the procedures which were to be followed in particular situations and the questions which could be asked if, for example, the response of a candidate was not sufficiently specific. In addition, all of the examiners attended meetings each morning of the examination which were designed to standardize the criteria and grading guidelines which were to be applied. The examiners were specifically told to grade independently the responses given by the candidates and not to look at the grades given by the other examiner. The physical diagnosis portion of the November, 1996, examination consisted of twenty-seven questions which the examiners asked the candidates. These questions were derived from two cases involving hypothetical patients whose symptoms were presented to the candidate by the examiners. A series of questions was asked about each patient, and the examiners separately assigned points for the answers given. The total points were then averaged to arrive at the final grade. In Question 8, Dr. Foss was asked to state the specific diagnosis he would derive from the symptoms which had been presented to him and the case history he had developed in response to previous questions regarding one of the hypothetical patients. The question was clear and unambiguous, and Dr. Foss had all of the information needed to make the correct diagnosis. Although Dr. Foss responded to the question with a diagnosis which correctly categorized the disease, his answer did not include the specific diagnosis which he could have derived from the information available to him. Dr. Foss was asked by one of the examiners to be more specific as to the cause of the disease he had diagnosed. After several minutes, Dr. Foss responded with an answer which he has admitted was incorrect. Question 8 was worth eight points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 8 was not arbitrary or capricious or an abuse of discretion. Question 15 was clear, unambiguous, and specifically identified the source to be used in formulating the answer. Dr. Foss did not use the methodology recommended in the source specified in the question; rather, he used a different methodology based on information contained in another source. Question 15 was worth two points on the examination, and one examiner gave him no points for his answer, while the other examiner gave him one point. The number of points awarded to Dr. Foss for his answer to Question 15 was not arbitrary or capricious or an abuse of discretion. In Question 27, Dr. Foss was directed to state his clinical judgment in response to a question asked by the examiners. The question asked was clear and unambiguous. Dr. Foss's response that he would not treat the patient but would refer her to a physician other than a chiropractor was contrary to the results of clinical studies reviewed in a widely- disseminated chiropractic research journal which suggest that chiropractic treatment would be appropriate. Question 27 was worth four points on the examination, and neither examiner gave Dr. Foss any points for his answer. The decision of the examiners to award no points to Dr. Foss for his answer to Question 27 was not arbitrary or capricious or an abuse of discretion.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration issue a final order dismissing the challenge of Bryan L. Foss, D.C., to the grade assigned him for the physical diagnosis portion of the November, 1996, chiropractic licensure examination. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997. COPIES FURNISHED: Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Dr. Bryan L. Foss, pro se 867 Tivoli Circle, No. 205 Deerfield Beach, Florida 33441 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Suite 3431 Fort Knox, Building No. 3 Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether Petitioner's challenge to the failing grade he received on the physical diagnosis portion of the May 2001 chiropractic licensure exam should be sustained.
Findings Of Fact Based upon the testimony and evidence received at the hearing, the following findings are made: Petitioner is a chiropractic doctor who has been licensed to practice in the state of Ohio since 1993. He maintains an active practice in Ohio, and he currently sees approximately 190 patients per week. Petitioner filed an application with the Department for a Florida chiropractic license. Applicants for licensure are required by statute and rule to take the licensure exam developed by the Department. Petitioner took the exam in May 2001. The exam consists of four parts, three practical and one written. The practical parts test the applicant on physical diagnosis, X-ray interpretation, and technique; and the written part tests the applicant on the Florida laws and rules regulating chiropractors. An applicant for licensure must receive a score of 75 on each part to pass the examination. Petitioner passed the written part of the exam as well as the X-ray and technique practical parts; however, on the physical diagnosis part, he received a failing score of 70. As a result, he failed to pass the exam and may not receive a Florida chiropractic license.2 The physical diagnosis part of the exam consisted of 26 tasks which the applicant was required to perform within the allotted time of 70 minutes. The physical diagnosis part of the chiropractic licensure exam is developed by a team of consultants retained by the Department. The team consists of licensed chiropractic doctors with varied practices and at least ten years of experience. The team derives the exam questions from case studies from prior administrations of the exam. The team meets on several occasions to refine the case studies and rework the questions. The team also develops and refines the answers to the questions based upon their research and a consensus reached after debate. After the exam questions are finalized and before the administration of the exam, the Department holds standardization sessions which all of the examiners are required to attend. The purpose of the standardization sessions is to ensure that each examiner knows what is a correct answer and what is an incorrect answer for each question. This, in turn, ensures consistency in the evaluation and grading of all applicants. The examiners who evaluated Petitioner's performance on the physical diagnosis exam attended all of the standardization sessions. The applicant's performance of each task in the physical diagnosis part of the exam is independently graded by two examiners. The purpose of the independent grading is to eliminate any potential bias in the grading and to increase reliability in the scoring of the exam. The examiners independently assigned a letter score -- A, B, or C -- to the applicant's performance on each task. A score of "C" represents full credit for the task. A score of "B" represents partial credit for the task. A score of "A" represents no credit for the task. Where the examiner awards less than full credit, he or she provides a notation on the score sheet regarding what the applicant failed to do properly. The letter score was translated into a numerical score based upon the pre-determined point value for the task. Each of the tasks at issue in this proceeding -- numbers 13, 14, 18, 21, and 22 -- were worth 4 points each. A grade of "C" for these tasks translates into a raw score of 4 points; a grade of "B" on these tasks translates into a raw score of 2 points; a grade of "A" on these tasks translates into a raw score of 0 points. The raw scores resulting from each examiner's grades are totaled separately and, then, those totals are averaged. The averaged score is what is reported to the applicant as his or her final score on the physical diagnosis part of the exam. As noted above, Petitioner received a score of 70 on that part. Task 13 (S1 Dermatome) Task 13 contained two sub-tasks. To receive full credit for Task 13, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the S1 dermatome, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 13. Thus, Petitioner received only two of the possible four points for that task. A "dermatome" is an area of the body surface served by a particular spinal nerve. The S1 dermatome is the area of the body surface served by the S1 nerve. The S1 dermatome encompasses an area which begins on the back of the leg below the calf, runs down the back of the foot over the heel, along a portion of the bottom of the foot to the toes, and then around the outside (lateral) portion of the foot. The expert testimony and the scientific texts introduced in this case vary on the exact portion of the bottom of the foot included in the S1 dermatome. Some indicate that it encompasses only that area from the outside of the foot to the fourth or fifth (little) toe, while others indicate that it extends from the outside of the foot all the way to the midline of the foot at the third (middle) toe. The common element in all of the expert testimony and the scientific texts is that the location of the S1 dermatome on the bottom of the foot is towards the outside of the foot rather than the inside (arch) of the foot. The S1 dermatome is tested by touching the dermatome with an instrument to determine whether the patient exhibits any sensory reaction, i.e., whether and to what degree the patient feels the touch. The dermatome can be tested without tracing its entire area; however, in order to map out the entire dermatome, its entire area would be tested. On the video tape of Petitioner's performance of Task 13, it appears that he is attempting to test the S1 dermatome, rather than demonstrating its area as the task requires. Petitioner can be heard telling the patient that he is going to "test" the dermatome level by touching the patient's foot to see if the patient can feel it. Immediately after these comments, one of the examiners (Dr. Weiss) can be heard on the video tape telling Petitioner to "trace the path of S1." Dr. Weiss also can be heard asking Petitioner to show the examiners where S1 starts and where it goes. Petitioner performed Task 13 by making a single straight-line motion starting on the back of the leg below the calf, then proceeding downward and under the foot, and ending near the big toe. Petitioner repeated the movement, again ending near or even slightly to the inside (arch side) of the big toe. By making only a single straight-line motion along the bottom of the foot, Petitioner failed to demonstrate the area of the S1 dermatome. At most, Petitioner demonstrated the line separating the S1 dermatome from the L5 dermatome, which is adjacent to the S1 dermatome on the bottom of the foot. As noted above, however, the S1 dermatome extends no further than the mid-line of the foot and therefore the line demonstrated by the Petitioner could not have been the boundary of the S1 dermatome. Even if Petitioner understood the task as "test the S1 dermatome" rather than demonstrate its area, the weight of the evidence shows that Petitioner did not correctly test the dermatome along the bottom of the foot. As discussed above, Petitioner's instrument appeared to travel along the inside (arch) of the bottom of the foot rather than the outside of the bottom of the foot. The S1 dermatome does not extend inward on the bottom of the foot beyond the mid-line and it certainly does not extend to the big toe. The notes written by the examiners on the grading sheets indicate that the "B" grade that Petitioner received on Task 13 was based upon the his tracing of an incorrect area on the bottom of the foot. The notes written by Dr. Weiss, the examiner who testified at the hearing, stated "traced wrong area under foot." The notes written by the other examiner similarly stated "S1 under foot incorrect." The notes were corroborated at hearing by the videotape and the testimony of Dr. Mathis. Because Petitioner failed to properly demonstrate the S1 dermatome, the examiners properly gave him only partial credit on Task 13. Task 14 (Acquilles Reflex Test) Task 14 contained two sub-tasks. To receive full credit for Task 14, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to demonstrate the Achilles reflex test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 14. Thus, Petitioner received only two of the possible four points for that task. Petitioner tested the Achilles reflex by lying the patient face down (prone) and then tapping a reflex hammer directly on the Achilles tendon of each foot. Petitioner did not dorsiflex either foot before striking the tendons. The taps elicited a reflexive response which can be clearly seen on the video tape of Petitioner's exam. Had the tap not elicited a response, Petitioner testified that he would have pursued alternative means of testing the reflex. The expert testimony and scientific texts introduced at the hearing show that there are several alternative ways to test the Achilles reflex, all of which are professionally accepted. One way is to tap directly on the Achilles tendon as Petitioner did. This can be accomplished with or without dorsiflexing the foot. The Department was looking for the candidate to pre-stress the tendon by dorsiflexing the foot prior to striking the tendon with the reflex hammer. The evidence does explain why dorsiflexing the foot would be the preferable method of testing the Achilles reflex under the facts of the case study. Another way to test the Achilles reflex is for the doctor to dorsiflex the foot by pressing his or her fingers against the ball of the patient's foot and then tap his or her fingers with a reflex hammer. Where the ankle is swollen or it is too painful to strike the tendon itself, this method of eliciting the reflex is preferred. The case study on which Task 14 was based indicated that the patient had "severe pain and swelling in the right calf, ankle, and heel." The case study did not indicate that the patient had a ruptured Achilles tendon, but that injury could not be ruled out based on the case study. In such circumstances, the expert testimony and scientific texts indicate that the preferred method of checking Achilles reflex would not be striking the tendon itself. Task 18 (X-Ray of 5-year Old) Task 18 contained two sub-tasks. To receive full credit for Task 18, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the first sub-task. Only the second sub- task, which required the applicant to answer the question of whether he or she would X-ray a 5-year-old child with certain symptoms, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 18. Thus, Petitioner received only two of the possible four points for that task. The question required applicants to answer "yes" or "no." They were not permitted to explain their answer. The question provided only limited information regarding the child and his medical history. The question did not state whether the parent had signed a consent form authorizing treatment of the child. Without parental consent, it would not be proper for the doctor to render any medical treatment to the child. It would have been reasonable for Petitioner to assume that any necessary consent forms had been signed. Petitioner did not request any clarification on this point from the examiners nor did his response during the exam mention the lack of a signed parental consent form. Instead, Petitioner explained that he would not X-ray the child because of the apparent severity of the child's injury and a concern that the child may have an injury "that wouldn't be chiropractic in nature." Based on these concerns, Petitioner stated during his exam that he would refer the child to his family physician. At hearing, Petitioner indicated that his concern regarding the severity of the child's injury was based upon the case study which indicated that the child was holding his neck. Petitioner considered this to be Rust's Sign. Petitioner did not request any clarification from the examiners regarding the manner in which the child was holding his neck. The expert testimony and scientific texts introduced at hearing indicate that Rust's Sign is most commonly exhibited by the patient supporting his or her head by holding the chin, rather than the neck. The patient holds his or her head to compensate for some muscular, ligament, or disk damage, which causes the neck to be unable to support the head. Even if Petitioner construed the limited case history provided to be evidence of Rust's Sign, the proper course of treatment would not have been to refer the patient to a family physician as Petitioner stated during his exam. Instead, the expert testimony and scientific texts indicate that the proper course of treatment would have been to immediately stabilize the neck with a cervical collar or something similar and immediately perform imaging (e.g., X-ray) to determine the source of the injury. Petitioner is not entitled to additional points for Task 18. Task 21 (Gluteus Maximus Test) Task 21 contained two sub-tasks. To receive full credit for Task 21, the applicant was required to properly complete both sub-tasks. There is no dispute that Petitioner correctly performed the second sub-task. Only the first sub- task, which required the applicant to perform the gluteus maximus muscle test, is at issue in this proceeding. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 21. Thus, Petitioner received only two of the possible four points for that task. The gluteus maximus muscle is the largest muscle in the body and is largely responsible for the shape of the buttock. It extends and laterally rotates the hip joint. The muscle is tested by having the patient lie face down (prone) with his or her knee bent 90 degrees or more. The importance of bending the knee is to isolate the muscle. While the doctor holds the patient's hip to stabilize it and applies downward pressure to the back of the thigh, the patient attempts to raise his or her leg. The video tape of Petitioner's exam shows that Petitioner had the patient in the prone position. Petitioner did not have the patient bend his knee. Nor did Petitioner have the patient lift his leg up. Instead, the tape shows Petitioner pulling the leg outward as the patient attempted to move the leg inward. Petitioner did not rotate the leg. The expert testimony and scientific texts introduced at hearing show that the test performed by Petitioner was the proper test for the gluteus medius or gluteus minimus rather than the gluteus maximus. This evidence corroborates the notation on one of the examiners' score sheet which stated "did gluteus med[ius]?" And see Endnote 1. Indeed, it appears from the video tape that Petitioner misunderstood the task he was to perform. When Petitioner first read the question for Task 21, he correctly read the two tests he was to perform, gluteus maximus and soleus. Petitioner then performed the soleus test. Then, he could be heard saying "gluteus medius" as if to remind himself what test he was to perform. Immediately after that comment, one of the examiners suggested that Petitioner reread the question. He did so, correctly reading "gluteus maximus." Petitioner then set up the table and got the patient situated. Then, one of the examiners asked which muscle test Petitioner was going to perform. He stated "gluteus medius." Petitioner then stood over the patient for a minute or so, apparently thinking to himself, and then performed the test as described above. Any confusion regarding the test to be performed was not a result of the form of the examination or the conduct of the examiners. The examination clearly indicates that the test to be performed is gluteus maximus. The words "gluteus maximus" are in bold type. The examiners attempted to clarify Petitioner's confusion by giving him an opportunity to correct himself after he first misstated the test to be performed. Task 22 (Trendelenburg Test) Task 22 required the applicant to perform two distinct tests and state what he or she is looking for in each test. To receive full credit for Task 22, the applicant was required to properly perform each test and state what he or she is looking for in each test. The only dispute in this proceeding is whether Petitioner's statement of what he was looking for in the Trendelenburg test was the correct response. Both examiners who evaluated Petitioner's performance gave him a grade of "B" on Task 22. Thus, Petitioner received only two of the possible four points for that task. The Trendelenburg test is used to evaluate the ability of the hip abductors, primarily the gluteus medius, to stabilize the pelvis on the femur. The test is performed by having the patient stand facing away from the doctor. The patient then lifts one of his or her legs. A positive sign is where the pelvis/hip of the lifted leg tilts downward instead of rising. Reference to the pelvic/hip tilt was what the Department considered to be a correct answer for Task 22. When performing the Trendelenburg test, the doctor should stand behind the patient with his or her hands on the patient's hips. This placement of the hands serves two purposes. First, it allows the doctor to feel even slight movement of the pelvis/hip in order to detect even a mildly positive sign. Second, it allows the doctor to stabilize the patient in the event that the patient loses his or her balance. The video tape of Petitioner's exam shows that he correctly performed the Trendelenberg test. He was positioned behind the patient with his hands on the patient's hips. He directed the patient to raise his right leg. Then, he stated that if the patient were to fall over, there would be a gluteus medius problem. Dr. Weiss requested clarification from Petitioner, specifically asking him what he was looking for. Again, Petitioner stated that the patient would fall over or lose his balance. Petitioner never used the word "lurch." The Trendelenberg test could cause the patient to lose his or her balance and "lurch" in the direction of the lifted leg or even fall over, but only in cases of severe weakness in the gluteus medius muscle. Such a response would be a positive Trendelenburg sign. The most common positive sign, however, is a downward tilt of the pelvis/hip on the side of the lifted leg. All of the scientific texts, including that offered by Petitioner, identify the tilt as the positive sign which the doctor should be looking for. The tilt is what causes the "lurch" that occurs in more severe cases. If the doctor is looking only for a "lurch," he or she might miss the tilt and thereby miss the most common positive sign of the Trendelenburg test. Because Petitioner stated that he was looking for the patient to fall over or lose his balance, rather than looking for the pelvis/hip tilt, his response to Task 22 was incomplete at best. Therefore, Petitioner is not entitled to any additional points for Task 22. Disruptive Noise During Petitioner's Examination The physical diagnosis part of the May 2001, licensure exam was administered in several conference-type rooms of a hotel. Approximately five or six applicants were administered the exam in the same room as Petitioner. Several of those applicants went before Petitioner and several went after him. While Petitioner was taking the examination, loud noises could be heard. On the video tape of Petitioner's exam, the noises sounded like loud scraping, scratching, and rumbling of metal, as if a large piece of equipment or furniture was being moved in a nearby area of the hotel. At other points, the noises sounded like thumping or banging. In his testimony, Petitioner described the noise as sounding like a mechanical tool or jack-hammer. Dr. Weiss, one of the Department's examiners who graded Petitioner's performance on the physical diagnosis part of the exam, testified that he heard the noise as well and described them as construction noises outside of the room. The noise was not continuous throughout the exam. The noise first could be heard on the video tape near the end of Petitioner's performance of Task 1. It was very loud, but lasted only for several seconds before subsiding. It could also be heard at a very loud level during Tasks 2, 4, 7, and 17, again for only a few seconds each time. The noise could also be heard during Tasks 6, 8, and 16, but at a much lower level. Immediately after the noise first occurred during Task 1, one of the examiners asked Petitioner if the noise was bothering him. Specifically, the examiner asked, "Is that distracting you?" To which Petitioner responded "No, it’s okay." Had Petitioner indicated that the noise bothered him, Dr. Weiss testified that the examination would have been stopped until the source of the noise problem could be addressed. Neither Petitioner nor the examiners mentioned the noise during the remainder of the exam. The video tape does not show any significant difference in Petitioner's demeanor during the tasks where the noise could be heard than the remainder of the tasks. Throughout the test, Petitioner looked somewhat uncomfortable, but not any more so than would be expected under the pressure of this type of exam. At most points where the noise could be heard, Petitioner appeared to be oblivious to it because he was so deep in concentration on the task at hand. Petitioner completed the physical diagnosis exam with more than 17 minutes of the allotted 70 minutes remaining. After he completed his exam, Petitioner filled out a Candidate Concern Form on which he stated that the noises made it hard for him to concentrate. The form was provided to Adrian Washington who was the Department employee in charge of administration of the exam. Mr. Washington informed the two examiners who evaluated Petitioner that a concern had been filed and requested that they independently describe the incident. Dr. Weiss' written comments on the incident referred to the noises as "distracting to me." However, Dr. Weiss' comments, as well as the comments of the other examiner, stated that Petitioner was asked during the examination whether the noises were distracting to him and that he said "no." The comments of the other examiner confirmed what the undersigned witnessed on the video tape, i.e., that "he [Petitioner] did not appear to be visually upset during the examination." The examiners comments also noted that even with the distraction from the noise, Petitioner completed the physical diagnosis part of the exam with time remaining. Based upon the responses of the examiners, primarily the fact that Petitioner stated during the exam that the noises were not bothering him, Mr. Washington determined that no further action was warranted with respect to Petitioner's examination. He did notify the hotel staff about the distractions around the testing area. No other candidate or examiner expressed any concern to Mr. Washington regarding noise problems during the examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Chiropractic Medicine enter a final order which denies Petitioner's application for a chiropractic license based upon the failing score that he received on the physical diagnosis part of the May 2001 licensure exam. DONE AND ENTERED this 15th day of March, 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 15th day of March, 2002.
