Findings Of Fact Case History On April 10, 1987, Petitioners filed a Petition for Formal Administrative Hearing and for Administrative Determination of Invalidity of a Rule as described in the Issues statement to this Order. On April 20, 1987, Intervenors requested intervention. On April 20, 1987, Respondent Board moved to dismiss the petition filed by the Petitioners and to stay the proceedings. On April 27, 1987, oral argument was held on the petition to intervene, the motion to dismiss, and the request to stay proceedings. On April 29, 1987, an order was entered which granted the intervention, and denied the motions to dismiss and to stay. The case was originally scheduled to be heard on May 5 and 6, 1987. Upon stipulation and agreement of the parties to waive the requirement set forth in Section 120.56, Florida Statutes, calling for the conduct of the final hearing within 30 days of assignment of this matter to a Hearing Officer, the case was rescheduled for hearing to be held on June 11 and 12, 1987. The First District Court of Appeal in Dept. of Professional Regulation, et al. v. William J. Broussard, M.D., et al., Case Nos. 87-238/87-260, issued an order staying the conduct of the hearing to be held on June 11 and 12, 1987. The stay was eventually dissolved as a result of an order entered by the First District Court of Appeal on July 23, 1987, in the aforementioned appellate court cases. The administrative case was then returned to an active status before the Division of Administrative Hearings and scheduled for hearing on dates including October 5 and 6, 1987, the eventual dates for hearing. Prior to the commencement of the hearing, Intervenors sought action on a motion to dismiss the Florida Medical Association as a petitioner. That motion was denied. Another preliminary matter related to the September 2, 1987, request for production of documents from the physician petitioners. On October 2, 1987, Petitioners had objected to that request for production. On October 5, 1987, Intervenors had filed a motion to compel physician petitioners to produce certain economic information and financial records related to allegations of standing. Prior to the commencement of the hearing on October 5, 1987, and in the face of remarks by counsel for the Petitioners, it was determined that the physician petitioners did not intend to advance a claim of economic injury in the sense of a change in economic circumstances in their practices with the advent of the licensure of certified optometrists. As a consequence, the requested production became a moot question and the motion to compel was denied. Enabling Legislation In 1986, the Florida Legislature reenacted the Optometry Practices Act, as Chapter 86-289, Laws of Florida. Section 6 of that Act set forth the opportunity for practitioners licensed as certified optometrists to administer and prescribe topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions of the human eye and its appendages. The specific provisions which establish the requirements for certification are announced in Section 463.0055(2), Florida Statutes (1986 Supp.) as: The board shall issue certification for the administration and prescription of topical ocular pharmaceutical agents in the diagnosis and treatment of ocular conditions to licensed practitioners who have completed the appropriate forms as required by the board and who have submitted proof of fulfilling all of the following requirements: Successful completion of at least 110 hours of approved transcript-quality coursework and clinical training in general and ocular pharmacology, as determined by the board. However, no course in pharmacology shall be approved by the board unless the course is conducted by an institution which has facilities for both the didactic and clinical instructions in pharmacology and which is accredited by a regional or professional accrediting organization that is recognized and approved by the Council on Post-secondary Accreditation or the United States Department of Education. Completion of at least 1 year of supervised experience in differential diagnosis of eye disease or disorders as part of the optometric training or in a clinical setting as part of optometric experience. Successful completion of an examination approved by the board which tests knowledge of general and ocular pharmacology with particular emphasis on the topical applica- tion of pharmaceutical agents for the eye and the side effects of such pharmaceutical agents. A related provision at Section 463.002(9), Florida Statutes (1986 Supp.), describes "transcript-quality" as follows: (9) "Transcript-quality" means a course which is in conjunction with or sponsored by a school or college of optometry or equivalent educational entity, which course is approved by the board and requires a test and passing grade. Section 463.0055(3), Florida Statutes (1986 Supp.), pertains to the payment of fees associated with becoming a certified optometrist. It states: (3) The board shall establish by rule an application fee, not to exceed $250, and an examination fee, not to exceed $250, for certification pursuant to this section. Section 463.0055(4), Florida Statutes (1986 Supp.), establishes a formulary committee which will assist DPR in identifying those topical ocular pharmaceutical agents that may be utilized by the certified optometrist in his or her practice. The decision to enact legislation providing for certification of optometrists to use topical ocular pharmaceutical agents for the diagnosis and treatment of ocular conditions in the human eye was passed in a setting in which optometrists within Florida had historically been involved with the administration and prescription of diagnostic and therapeutic drugs. The overall facts of this case demonstrate that this legislation was designed to specifically set forth the framework for allowing the employment of those pharmaceutical agents or drugs in the future. Adoption of Rule 21Q-10.001, Florida Administrative Code, etc. In an attempt to effectuate the purposes of Section 463.0055(2), Florida Statutes (1986 Supp.), the Board adopted Rule 21Q-10.001, Florida Administrative Code. The rule was first noticed for adoption in Vol. 12, No. 38 of the Florida Administrative Weekly, published September 19, 1986. The rule was adopted by the Board and filed with the Secretary of State on October 31, 1986. The effective date of Rule 21Q-10.001, Florida Administrative Code, is November 20, 1986. In the issue of the Florida Administrative Weekly described in the previous paragraph, the Board published amendments to the rule pertaining to fees which is Rule 21Q-6.001, Florida Administrative Code. Those amendments were filed with the Office of the Secretary of State on October 31, 1986. They became effective on November 20, 1986. Within that set of amendments on fees, the Board created a $100 application fee "for certification as a certified optometrist" and a $250 examination fee "for certification as a certified optometrist." The text of Rule 21Q-10.001, Florida Administrative Code, states: 21Q-10.001 Application for Certification. To be certified to administer and prescribe topical ocular pharmaceutical agents a licensed practitioner must submit a completed application form provided by the Board, remit the application fee for certification speci- fied in Rule 21Q-6.001(9), and demonstrate compliance with the following requirements: Successful completion of at least 110 hours of Board approved transcript quality coursework and clinical training in general and ocular pharmacology conducted by an accredited institution which has facilities for both didactic and clinical instruction in pharmacology. The institution must document the applicant's successful completion. The Board will accept coursework and clinical training in general and ocular pharmacology received by the applicant during his basic optometric curriculum or at postgraduate courses if this coursework and training was provided by a Board approved school of optometry or equivalent educational entity; Completion of at least one (1) year of supervised experience in differential diagnosis of eye diseases or disorders. The one year of supervised experience shall be received either during optometric training or in a clinical setting as part of optometric experience. The requisite one year of supervised experience in a clinical setting may be obtained in an academic or non- academic environment. For the purpose of this rule, one year of supervised experience in an academic setting is understood to mean three (3) quarters or two (2) semesters and one (1) year of supervised experience in a non-academic setting is understood to mean a twelve month period; Successful completion of a Board approved examination testing knowledge of general and ocular pharmacology with particular emphasis on the topical application of pharmaceutical agents. In order to be approved by the Board, the examination must have been administered in a Board approved school of optometry or at the conclusion of a post- graduate course conducted by a Board approved school of optometry, and the examination must be approved by the Board. Board Activities in Certifying Optometrists In preparation for implementing the statute, in July 1986 Board Chairman Edward K. Walker, O.D., appointed Jon S. Jacobs, O.D., as an ad hoc committee of one to begin gathering information from the schools and colleges of optometry. Dr. Jacobs' mission was to gather information from the schools and colleges to present to the Board so that it could determine whether the level and quality of the education, curriculum, examinations and supervised clinical experience in differential diagnoses received by optometry graduates of the various schools satisfied the criteria contained in Section 463.0055(2), Florida Statutes (1986 Supp.). Licensed practitioners of optometry in Florida have been educated at eighteen different schools and colleges of optometry. Dr. Jacobs contacted either the president or dean of each of these institutions in order to obtain information for the Board's consideration. On August 1, 1986, Dr. Jacobs wrote each of the schools and colleges. In his letter Jacobs cited the language of the statute and asked the schools to respond to the different sections of the law by providing the Board with information concerning whether and when graduates of their institution satisfied the statutory criteria. He requested specific information from the schools concerning how many clock hours of coursework in general and ocular pharmacology they required and in what years they required them. He inquired whether or not students had to pass the pharmacology courses in order to graduate. He asked that the schools provide the Board with the pharmacology examinations given to their graduates. Dr. Jacobs also requested that the schools provide the Board with the information which would establish the beginning year in which the institution required of their graduates one year of supervised experience in differential diagnosis of eye disease or disorders. In addition to requesting information concerning the school's basic curricula leading to the O.D. degree, Dr. Jacobs also requested information on postgraduate and continuing education coursework offered by the institutions. The Board interprets the 110-hour requirement as referring to "clock hours" and not to "credit hours." The Board has determined that the accreditation of a school is evidence of its having facilities for both the didactic and clinical instructions in pharmacology. The optometric schools in question are accredited. All of the schools responded with information from which the Board could determine if and when the school met the 110 clock hour requirement and the requirement of one year of supervised experience in differential diagnosis. All of the schools provided information to the Board which indicated that their students were required to pass the pharmacology courses in order to graduate and therefore satisfied the "successful completion of at least 110 hours" criterion. Follow-up correspondence and telephone conversations with the presidents or deans were necessary to clarify the Board's request and verify the school's response. Many of the schools and colleges expressed concern about the confidentiality of the examinations which the Board had requested. The Board assured the schools that it would not be reviewing the exams for any purpose other than complying with its statutory responsibilities. The information was submitted to the Board in various forms by the schools and colleges and included catalogs, lists of pharmacology courses, and narrative or individual curriculum descriptions of pharmacology courses offered by the institutions. All of the schools and colleges submitted examinations to the Board, but not all examinations given in the relevant courses. Some of the schools submitted as many as eight examinations. The exams submitted were administered by the schools at various times. Many of the schools submitted information which indicated that they maintain computerized banks of examination questions from which they draw randomly in constructing examinations. In some instances, the Board received representative examinations because all of the exams the school had ever administered were not available. With the assistance of the Board's executive director, Dr. Jacobs compiled the information he had gathered from the various schools in chart form and presented it to the Board for its consideration. The ad hoc committee of one composed of Dr. Jacobs evolved into a three member certification committee. In August of 1986, Peter Liane, O.D., became chairman of the Board and appointed Dr. Jacobs as chairman of the Board's Certification Committee. Dr. Liane also appointed himself and Dr. Walker to the committee. The mission of the certification committee was to determine the minimum requirements of the statute, further organize the information Jacobs had gathered, and recommend to the Board those who were to be certified or not based upon documentation and evidence of what they deemed to be compliance with the statute. In reviewing the information it had gathered, the Board viewed the statutory criteria as requiring it to answer three questions: (1) Have applicants for certification received the requisite quantity and quality of coursework?; (2) Have applicants obtained the requisite differential diagnosis experience?; and (3) Are applicants safe to prescribe and administer topical ocular pharmaceutical agents based on passage of a Board approved examination which tested their knowledge of pharmacology and the side effects related to topically applied pharmaceutical agents? The Board reviewed the curriculum and the catalogs and information it received from the schools of optometry. The Board was satisfied about the accuracy of the information it received from the schools and colleges based upon the Board's knowledge of the programs in the schools, including experiences of four members of the Board who sit on the boards of trustees of various colleges of optometry. The Board relied upon the information, statements, and representations they received from the deans and colleges concerning when their graduates complied with certain statutory criteria. The Board determined that it would accept education, training, and examinations from the schools and colleges of optometry and other equivalent entities in order to satisfy statutory criteria for certification. When asked to describe in general terms what the Board was looking for in reviewing the exams to determine if the coursework in pharmacology was in compliance with Section 463.0055(2)(a), Florida Statutes (1986 Supp.), Board members identified that they reviewed examinations to determine whether the course content, as set forth in the exam instrument, was at least 75 percent related to general and ocular pharmacology. The 75 percent standard was chosen by the Board as an arbitrary number which represented "a substantial portion of the test." A number of courses and their exams were not recommended for approval on the basis that the examinations lacked enough questions related to pharmacology to meet this requirement established by the Board. Although the deans and colleges assured the Board that their school's coursework satisfied the pharmacology criterion, it was the Board's understanding that the Legislature intended for the Board to "approve" the coursework by looking at it to determine the quality and level of that coursework. The Board was of the view that, even though an applicant took a course for the requisite number of hours, unless the Board specifically approved the course and determined that it was of sufficient quality, the course would not satisfy the first statutory criterion. Therefore, the Board reviewed the material each institution submitted on an individual basis, and approved portions of that material as satisfying the criterion for coursework. The Board believed that the best way to evaluate the quality of a course was to look at the examination which was required in that course. The Board reviewed each of the examinations which they received from the schools or colleges. Although the Board did not review each and every exam administered by all schools, it did review exams from all schools. Each Board member received copies of the exams. The exams were reviewed and discussed question by question at public meetings. The Board conducted its review based on the expertise of its members who are practicing optometrists with a knowledge of optometric education and professional practice. The statutory term "successful completion" was determined by the Board to mean successful passage of an examination for the course. The deans of the schools certified to the Board that their graduates were required to have taken 110 hours of coursework in pharmacology and had passed an exam in such coursework. With regard to the "110 hours," the Board determined that even if an applicant indicated that he or she had received that quantity of coursework, at least 75 percent of the 110 hours (83 hours) would need to be satisfied in a core course. None of the exams which the Board reviewed for the 83 hour core courses were "take home" exams. Some examinations for which partial credit was given were of that type. In satisfying the statutory criterion of "transcript-quality coursework," the Board determined whether the coursework was given by a school or college of optometry or equivalent entity, and whether the student had taken and passed an examination on the coursework. The Board also determined that the coursework which was submitted in satisfaction of the 110 hour requirement, in fact, included "clinical training." The Board made this determination by observing that information in the curriculum presented by the various schools and colleges. As to the specific clinical training criterion for certification, Dr. Jacobs assumed that the schools "automatically would have their clinical training in their curriculum." Also, Dr. Jacobs indicated that, because the schools were accredited, "we could then assume that these were the quality schools and, therefore, would be administering quality coursework and quality testing." The courses which were approved by the Board as having satisfied the 110 hours of "pharmacology" criterion were courses which dealt with the properties, chemistry, actions and uses of drugs. The courses approved also dealt with the effects of drugs on the body and on the eye, the diagnostic use of drugs, the therapeutic use of drugs, and the side effects of drugs. The Board also determined that the pharmacology coursework was "conducted by an institution which has facilities for both the didactic and clinical instruction in pharmacology." The Board did not approve courses taught by individuals, but only recognized courses conducted by colleges of optometry with both the physical facilities and faculty expertise in teaching and research necessary to provide didactic and clinical instruction in pharmacology. The Board also determined that each approved course was conducted by an institution accredited by the Council on Post-secondary Accreditation. This information was readily accessible to the Board because of the Board's continuing responsibility to review the accreditation status of various optometry schools in order to enforce the Board's existing requirement that applicants for licensure in Florida be graduates of accredited schools. Accreditation, however, did not mean a school's coursework was automatically accepted as satisfying the statutory criterion. Of the eighteen accredited schools of optometry recognized for licensure purposes in Florida, coursework from only sixteen were approved for certification purposes. Two accredited schools, the University of Montreal and Interamerican University of Puerto Rico, were disqualified because they did not meet the statutory requirements for certification. However, the Board believes that the statutory and rule requirement that approved coursework must be "conducted by" an accredited institution which has facilities for both didactic and clinical instruction in pharmacology does not require that such courses be taken at that institution or at a location that, in fact, has didactic and clinical instruction facilities. The Board also reviewed and approved continuing education courses and postgraduate courses which could be used in partial satisfaction of statutory criterion number one. The Board went through the same process with regard to reviewing and approving the examinations for the continuing and postgraduate courses. However, unlike the groups of representative exams which the Board was sent by schools and colleges, the Board reviewed each and every one of the continuing education and postgraduate examinations. Although the Board had previously reviewed and approved the continuing education course exams when the courses were approved for continuing education credit, the Board reviewed the exams a second time to determine if they satisfied the certification criterion concerning appropriate coursework. The Board has approved approximately forty continuing education, seminar, extension and postgraduate courses. The Pennsylvania College of Optometry continuing education course referred to as "PCO 701" is an example of this type of course approved by the Board. The "PCO 701" course was designed for practicing optometrists. The instructors for the course were Ph.D.s in pharmacology and ophthalmologists from the Jefferson Medical School in Philadelphia. The instructors flew in to several areas of Florida every weekend to conduct the three month continuing education course. As to the requirement of one year of supervised experience in differential diagnosis, the Board has determined that this may be obtained in either an academic or a non-academic environment. In order to determine compliance with the "one year of supervised experience" criterion, the Board requested the schools and colleges to provide it with the year in which the institution required at least one year of clinically supervised training in differential diagnosis of their graduates. The catalogs and curricula submitted by the schools to the Board also indicated that clinical training was provided as part of pharmacology coursework. The third criterion requires an examination approved by the Board. The Board did not prepare or administer an examination in order to determine an applicant's compliance with this criterion. Concerning the requirement of successful completion of an examination which tests knowledge of general and ocular pharmacology, the rule implements the Board's policy decision to not prepare and administer a separate pharmacology exam for certification purposes. The Board has determined that examinations administered in optometry school or in postgraduate courses suffice. In order to determine whether applicants satisfied the third criterion, the Board reviewed and approved the examinations which applicants had been required to pass either at the end of their coursework in optometric school or at the end of their postgraduate education. Since 1972, the Board has tested for the side effects of pharmaceutical agents as required by criterion three on the pharmacology portion in its general licensing examination, to become a "licensed practitioner." The pharmacology portion of the Board's exam is a prerequisite to obtaining licensure in Florida. Part I of the examination tests ocular pathology and pharmacology. Applicants must obtain a score of 70 percent or better in each subject in Part I of the exam in order to obtain a passing grade. Part II of the exam consists of the clinical portion and a pharmacology/ocular disease portion. An applicant must obtain a score of 80 points or better in order to secure a passing grade on the clinical portion of the practical exam. The National Board of Examiners in Optometry Education also tests ocular pathology, ocular pharmacology, and treatment and management of ocular disease. The NBEO exam tests: Clinical science which measures a candidate's application of the fundamental knowledge base to the prevention, diagnosis, management, and treatment of clinical conditions within the scope of optometric practice and consists of the following subject areas: systemic conditions; ocular disease/trauma. The International Association of Boards of Examiners in Optometry examination on the treatment and management of ocular disease (IAB examination) is an examination which must also be passed by Florida applicants in order to obtain general licensure. The IAB examination is designed to assess the cognitive skills deemed essential in utilizing pharmacologic agents for therapeutic purposes. A passing score is 75. The subject areas tested on the IAB examination include selection of the therapeutic regime; dosage and/or duration; contraindications/side effects; and the follow-up prognosis. The Board of Optometry approves the Florida examinations for general licensure. This function includes reviewing all of the examinations, working with DPR staff in the design of those examinations, actual selection of examination questions, and determination of the scope of the exam. The Board has approved all of the general licensure examinations which have been administered subsequent to 1972. Although Board members have been aware that since 1972 applicants for general licensure have been required to pass the Board approved examination in pharmacology which tests for side effects, the Board has never specifically stated or adopted a policy that this examination satisfies the third criterion to become a certified optometrist. While the Board seems satisfied that the post-1972 licensure exam would be sufficient to satisfy that criterion, the Board relied on and approved the exam which the applicant took either in school or at the end of their postgraduate training as the exam which satisfied the third criterion. Eight hundred seventy three (873) optometrists had been certified in Florida at the point of final hearing. Each of the 873 optometrists who have been certified were existing licensed practitioners in Florida at the time they were certified. Paradoxically, though the Board did not rely on the general optometric examinations for certification, it did rely on the 1972 and forward examination results in classifying the successful candidates for certification. The Board related that 570 of the 873 certified optometrists took the Florida licensure exam in 1972 or thereafter. Three hundred three (303) took the Florida licensure exam prior to 1972. Two hundred sixty three (263) of the 303 took and passed the PCO 701 course for which the Board reviewed each examination and determined that it satisfied the third criterion because it tested for the use of topical application of pharmaceutical agents and side effects. Of the remainder of the applicants who were examined for general licensure prior to 1972, 37 took the PCO 750-B course which was another course in pharmacology for which the Board had reviewed exams and found that they satisfy the third criterion. Of the remaining three applicants, one took the New England diagnostic pharmacology course and one took the Indiana DBF course in ocular pharmacology. The Board reviewed and approved each of these exams as having satisfied the third criterion. The lone applicant remaining of the 873 was a 1971 graduate from the University of Houston. The Board did not review the actual exam which the University of Houston applicant took, although the Board reviewed a number of representative exams which were sent by the University of Houston. Based on its review of the representative exams provided by the University of Houston, the Board determined that the one applicant for certification who had taken an examination which tested for side effects, but which actual exam was not approved by the Board, was sufficiently qualified to demonstrate compliance with the third criterion. The Chairman of the Board personally knows the single candidate from the University of Houston and has a personal knowledge of his practice abilities and competence. The Application/Certification Form The application form, which is challenged as an unpromulgated rule, sets out an activity section for the benefit of the Board which would indicate if a candidate has been approved for certification, the assigned certification number if approved, and other items related to this review. The application form contains a place where the applicant sets forth his or her name and the mailing address. The application form identifies the fact that $100 fee for application is required. The form asks that the candidate name the school or college of optometry which he or she attended and the year of graduation, and to provide and 8 1/2 X 11 inch photocopy of the diploma received from that school. The application form provides for the applicant's signature which is to be notarized. The application form in its second page gives further instruction and cites the text of Rule 21Q-10.001, Florida Administrative Code, and Rule 21Q-10.002, Florida Administrative Code. The latter rule deals with the administration and prescription of topical pharmaceutical agents. The application form in its substance, set out in Sections 1 through 4 of the first page, establishes the exact formula for obtaining certification to practice optometry, beyond the payment of fees and other preliminary matters which have been addressed in these factual findings. In effect, there are four alternatives by which a candidate may obtain certification. This has formed the basis for examining the credentials of candidates since the inception of the certified optometrist program within the State of Florida. The only changes that have been made concern the fact that the application form has been expanded upon through the recognition of additional postgraduate courses which could count toward the obtainment of 110 hours of approved coursework in general and ocular pharmacology. The form does not contemplate the idea of independent testing to address the third statutory criterion. The details of the four alternatives are as set forth below: 1. I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which his certified to the Board that graduates received 110 hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination (463.0055(1)(a)(c)). At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of the optometric training for graduation (463.0055(1)(b)). Optometrists who graduated from the following schools in the year listed below, or in subsequent years, have been approved by the Board as meeting all of the requirements of 463.0055(1)(a)(b)(c) F.S. PLEASE CHECK THE APPROPRIATE BOX, IF THIS IS YOUR CATEGORY. Univ. of Alabama 1973 Univ. of Houston 1975 U. of CA at Berkley 1977 Illinois College 1976 Southern California 1979 Indiana Univ. 1976 Ferris State College 1979 Univ. of Missouri 1984 Pennsylvania College 1976 Southern College 1976 Waterloo, Canada 1976 New England College 1977 Northeastern State 1983 Ohio State 1972 Pacific University 1977 State Univ., New York 1975 I am applying to become a certified optometrist based on graduation from an approved school or college of optometry which has certified to the Board that graduates received 88 or more hours of approved coursework in general and ocular pharmacology, including clinical training, and passed a Board approved examination. At least one year of supervised experience in differential diagnosis of eye disease or disorders which included as part of the optometric training for graduation. I graduated from the school checked below and have attended the following approved courses, as indicated, to meet the 110 hour requirement for certification. SCHOOLS Univ. of Houston 1966-74 90 hours Illinois College 1974-75 102 hours Waterloo, Canada 1972-76 84 hours COURSES (attach verification of passing the exam) FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/83 6 hours FOA/Univ. of AL-10/85 6 hours FOA/Univ. of AL-10/86 6 hours FOA/PA College-5/78 6 hours FOA/PA College-10/84 6 hours I am applying to become a certified optometrist based on 88 or more hours of approved transcript quality courses in general and ocular pharmacology, which included clinical training and passing a Board-approved examination. At least one year of supervised experience in differential diagnosis of eye diseases or disorders was included as part of my optometric training for graduation. The following courses have been approved by the Board as meeting the criteria above: (Check any courses you attended and attach proof of passing the exam.) PA College Course 750B 110 hours Illinois College Courses 1986-87 85 hours PA College Course 701 98 hours PA College Course 701 105 hours Florida Optometric Assoc/ PA College 1/31/87 110 hours If applicable to meet the 110 hours, the following approved courses may be included in your documentation for certification: FOA/Univ. of AL-2/7-8/87 10 hours FOA/Univ. of AL-10/85 6 hours FOA/PA College-5/78 6 hours FOA/Univ. of AL-10/85 6 hours FOA/PA College-10/84 6 hours FOA/Univ. of AL-10/86 6 hours I do not fit into any of the above categories. However, my educational coursework and clinical training meet all three (3) requirements of 463.055(2)(a)(b) and (c). I have attached a detailed report and all required documentation as necessary. Sections 1-4 within the application form are based upon the information gathered by Dr. Jacobs from the schools of optometry and concerning postgraduate coursework. The Certification Committee reviewed the information which Dr. Jacobs had gathered, and made a recommendation to the Board pertaining to how the information should be used. Dr. Jacobs presented a suggested format for the application form to the Board's office based upon the charts he prepared which summarized the information he had gathered. The Board's office modified Dr. Jacobs' suggested format and sent it to the Board members for their approval. After the Board approved both the use of the information gathered and the format of the application, the Board office prepared the application form for printing and distribution. By including the information concerning the school and year attended by the applicant, the Board was able to avoid having to search through existing Board licensure files which already contain this information and also enabled the Board to refer to the data which the Board had already gathered and analyzed, without the necessity to do it for each applicant. The Board did not accept the form alone in its decision-making process. The associated documentation was reviewed by the Board prior too approval for certification. Applicants were disqualified if they did not provide proper documentation. The Certification Committee reviewed all individual applications and made recommendations to the Board. Each application was reviewed individually by two different committee members. If the two committee members disagreed on certifying the applicant, the third member of the committee reviewed the application and cast the deciding vote concerning whether to recommend certification or not to the Board. The Board then voted on the application and decided whether or not to certify the applicant. The form was designed to act as a facilitator. Nonetheless, it is the substantive standard for review in all instances. The application form implements the Board's previous decision to accept the substantive information which it had been provided. Within the form, Section 1 applicants are those optometrists relying solely on their graduation from one of sixteen optometry schools in the United States and Canada on or after the year designated on the form for that school. Section 2 applicants are those optometrists relying on graduation from the University of Houston (1966-1974), Illinois College of Optometry (1974-1975), or University of Waterloo (1972-1976), in conjunction with completion of courses sponsored by the Florida Optometric Association. Section 3 applicants are those optometrists seeking certification based on completion of one post-graduation "core course" of 83 hours or more, and additional continuing education courses necessary to achieve the 110-hour total. Section 4 was created for applicants who may not fit in any of the three previously-described sections, but who may be able to establish their qualification for certification through other means. An example of use of the form is that when an applicant checked Section 1 on the form indicating the school and year of graduation, the Board reviewed the diploma to determine whether the graduation date on it coincided with the date of graduation, and the school checked in Section 1. Having previously determined that graduates of that institution subsequent to the year indicated on the form satisfied the statutory criteria, the Board used the form to confirm the applicant's credentials in the request for certification. The determination as to whether or not to certify the applicant was made after the Board examined the application form and verified that the applicant had graduated from that particular school by checking the diploma, signature, and notary certificate. Section 3 of the form shows eleven courses. As mentioned before, there are other courses that since have been determined by the Board to be acceptable towards the 110 hour total. These courses were not listed on the form because the Board was unaware of them at the time the form was printed. An applicant under Section 3 who wanted to claim credit for courses which were not listed, could write in those courses and send documentation from the school in the form of a letter or transcript which indicated that the applicant had been tested on the course and had passed the exam. The Board would then confirm that the course was given and would review the exam for course quality. With respect to applicant who checked Section 3, the Board also determined satisfaction of the one year of supervised clinical experience requirement by referring back to the information which had been provided previously by the optometry schools. For Sections 2 and 3 applicants, the continuing education courses relied on to supplement optometric school coursework or post-graduation "core courses" were all sponsored by the Florida Optometric Association in conjunction with optometric schools. Section 4 of the application form afforded applicants who did not fit categories 1, 2 or 3 an opportunity to demonstrate that they satisfied the statutory criteria. For instance, one applicant who applied under this category was a pharmacist before he was an optometrist. He did not fit into any of the other categories because his coursework was obtained in pharmacy school, and he wished to rely on that training to satisfy requirements for certification. A review of the minutes of the Board meetings from the amendment of Chapter 463 in June, 1986, through August, 1987, indicates that the certification form was not adopted as a Board rule. Dr. Walker, Board member, in his testimony confirmed that the application form was not adopted as a Board rule. The certification form-was first used by the Board at the first meeting at which it certified optometrists, April 11, 1987. It certified 455 optometrists at that first meeting; 200 more at its May 9, 1987 meeting; 174 more at its July 6, 1987 meeting; and 45 more at its August 28, 1987 meeting. Of the continuing education courses for which information is available, the "smaller courses" of 10 hours or less were offered in a "seminar" setting, with faculty from optometry schools, most notably UAB, Pennsylvania, Southern College, New England, Indiana, and Houston. In addition to the Florida Optometric Association, other non-school entities such as the Southern Council of Optometrists, the American Academy of Optometry, the Southwest Florida Optometric Association, the Northeast Florida Optometric Society, and the Bay Point Anterior Segment Symposium, Inc., sponsored some of these continuing education courses. Some of the approved continuing education courses described in the form were given at resorts, hotels, or meeting centers. Legislative Intent Petitioners' Composite Exhibits Nos. 6 and 7 were offered in an attempt to describe legislative intent related to Senate Bill 3-B, which forms the basis of the amendments to Chapter 463, Florida Statutes, which took place in 1986. This included Section 463.0055, Florida Statutes (1986 Supp.). Having considered those exhibits and the proposed facts of the parties, the intent which the Legislature had in the passage of Section 463.0055, Florida Statutes (1986 Supp.) cannot be gleaned. Therefore, conclusions about the meaning of that legislation must be made based upon a literal reading of its text, together with other provisions within Chapter 463, Florida Statutes. In a related vein, the Board of Optometry and the Intervenors have suggested facts concerning an April 15, 1987, Senate Committee on Economic, Community and Consumer Affairs request for information from the State of Florida, Department of Professional Regulation, on the topic of the Board of Optometry's implementation of the certification process. In particular, reference is made to that committee's request concerning which schools and coursework satisfied the 110 hour and one year of supervised clinical experience requirements contained within the statute. The committee also wanted documentation of the procedures and standards used in approving examinations which satisfied the requirement for examination set forth in the third criterion. The Secretary of DPR requested the Board of Optometry to prepare the report and it was prepared and delivered to the Senate Committee. That report generally describes the activities of the Board of Optometry in its efforts at certification, as announced in the fact findings herein. Because the Senate Committee did not respond to the report made by the Department of Professional Regulation, the Intervenors and the Board urge that the silence by the Senate Committee somehow recognizes the acceptability of the procedures employed by the Board of Optometry in its certification process. Likewise, the Intervenors and the Board of Optometry seem to take some comfort in the fact that no further legislation was passed in 1987 pertaining to Section 463.0055(2)(c), Florida Statutes (1986 Supp.), which dealt with the need to have the Board prepare an independent examination document as opposed to the technique which has been employed of using other examination instruments to satisfy the terms of that statutory reference. The exact position of the Senate Committee concerning this dispute and the need for independent testing to address the third criterion is not described in this record, nor can its silence or that of the full Legislature in its 1987 Session be seen as creating any inference about the proper construction to be given the language within Section 463.0055, Florida Statutes (1986 Supp.), and especially Section 463.0055(2)(c), Florida Statutes (1986 Supp.). Standing Ophthalmologists and optometrists who practice their professions in Florida are to a significant extent offering similar health care. In particular, the opportunities provided the certified optometrist for practice coincide with part of the practice available to ophthalmologists. Petitioner, Florida Society of Ophthalmology, is an organization concerned with, among other things, the educational interests of ophthalmologists and the quality of eye and health care delivered to the patients of ophthalmologists. It is also concerned on behalf of its members about the quality of eye care and health care of Floridians treated with medication by optometrists. Petitioner Florida Medical Association has the same concerns, responsibilities and purposes. Petitioner, Tully C. Patrowicz, M.D., is a physician and ophthalmologist practicing in Mount Dora, Florida, since 1972. Dr. Patrowicz is a Board-certified ophthalmologist since 1974, and is also a past officer and president of Petitioner Florida Society of Ophthalmology. He is currently a member of both Florida Society of Ophthalmology and Florida Medical Association. Petitioner, William J. Broussard, M.D., is a physician and ophthalmologist who has practiced in Melbourne, Florida, since 1967. He is a Board-certified ophthalmologist since 1966. Dr. Broussard is also a member and former office of Petitioner Florida Society of Ophthalmology. Florida Optometric Association is a not-for-profit organization with membership comprised of licensed optometrists in Florida. The purpose of Florida Optometric Association is to promote and protect the general public in ensuring the availability of high quality optometric services at affordable prices. Approximately 850 of the 1,100 practicing optometrists in Florida are members of Florida Optometric Association. Approximately 650 certified optometrists are members of Florida Optometric Association. Florida Optometric Association participates in administrative proceedings, legislative activities, and court litigation on behalf of optometry. The president of Florida Optometric Association has authorized retention of counsel for those purposes with the permission of the Executive Board and a vote of the membership. Florida Optometric Association members who are certified optometrists are subject to Rule 21Q-10.001, Florida Administrative Code. Florida Optometric Association participated in the legislative activities which resulted in the Optometric Practice Act of 1986. Dr. Howard J. Braverman, O.D., is President of the Florida Optometric Association and is a certified optometrist engaged in the active practice of optometry in Florida. If the certified optometry rule is invalidated, it will have a significant impact on the practice of certified optometry by Dr. Braverman and by the members of the Florida Optometric Association who are certified optometrists. It would also significantly affect their patients. Petitioner Baxter H. Byerly, M.D., and Intervenor Frank A. Broome, O.D., did not appear at the hearing and no indication was given concerning the exact nature of their claims as petitioner and intervenor, respectively. Respondent State of Florida, Board of Optometry, is an agency of the State of Florida within the Department of Professional Regulation with authority to regulate the practice of optometry. Sections 463.001, 463.003, 463.005, Florida Statutes (1986 Supp.). Activities subject to the Board's regulatory and rulemaking authority include standards of practice of optometry, the administration and prescription of topical ocular pharmaceutical agents, and the certification of optometrists to administer and prescribe such drugs in their practice. See Sections 463.005(1)(a) and (g), and 463.0055, Florida Statutes (1986 Supp.). Respondent State of Florida, Department of Professional Regulation, is an agency of the State of Florida that generally assists the various professional regulatory Boards, such as the Respondent Board of Optometry, in the examination and licensure of professionals. See Section 455.217, Florida Statutes.
The Issue Is Petitioner entitled to the receipt of an additional point(s) for her cosmetology examination given by Respondent on December 17, 1997?
Findings Of Fact Petitioner was a candidate for the written clinical part of the cosmetology examination given by Respondent on December 17, 1997. Petitioner had requested ADA accommodations for her dyslexia as part of her examination. On December 5, 1997, Respondent through a special testing coordinator of the Bureau of Testing, wrote to Petitioner to inform Petitioner that Petitioner's request for special testing accommodations for the December 17, 1997, cosmetology examination had been approved. Through this correspondence Petitioner was told: The following provision(s) have been approved: READER who will also mark your answers on your scan sheet, time and a half, and a private testing area. * * * If you experience any problems at or during the examination, please notify the examination supervisor on site immediately. In furtherance of its commitment, Respondent provided Ms. Ruth Schneider to read the examination questions and the multiple answer choices in the written clinical cosmetology examination given on December 17, 1997. Before serving in the role of reader Ms. Schneider had several hours of training. Ms. Schneider had attended a meeting at the test site. In her orientation, Ms. Schneider was instructed concerning any changes in procedures from the last time she had worked as part of a group administering examinations, to include the cosmetology examination in this case. Ms. Schneider was informed about how the paper work should be handled in the cosmetology examination at issue, specifically how to protect a candidate's papers. In carrying out her duties in assisting Petitioner at the December 17, 1997 cosmetology examination, Ms. Schneider read Petitioner the questions and choice of answers and marked the letter answer that represented Petitioner's choice for responding to the question. Ms. Schneider did not discuss with Petitioner any possible answer to be given to any question. Ms. Schneider did not suggest an answer to be given. Ms. Schneider was not competent to suggest an answer to be given, not having training as a cosmetologist. Ms. Schneider marked the letter of the answer which Petitioner chose for a given question by using a no. 2 pencil and bubbling in the circle of the letter chosen for the answer as reflected on the cosmetology examination score sheet for Petitioner. Later, when the score sheet was graded by Respondent by the use of a template placed over the score sheet, in the event the answer given by Petitioner was not the answer deemed by Respondent to be correct, a dashed line would be marked through the answer Respondent found acceptable, with the bubbled- in answer chosen by Petitioner remaining on the answer sheet. The bubbling of an answer means that the circle with a letter equated to the answer to the specific question would be filled- in. When the examination had been completed both Petitioner and Ms. Schneider executed a form of the Bureau of Testing referred to as an ADA Site Verification Form. In the execution of that form Petitioner replied in the affirmative to the following questions: Were you provided special provisions as indicated above (this was in relation to Petitioner's time and a half, a reader who will also mark your answers on your scan sheet, and a private testing site)? Were you satisfied with the special provisions provided during your examination? Were you informed in previous correspondence should you experience any problems at, or during examination, to notify the examination supervisor on site immediately? Did a proctor or scribe mark you answers for you? If you answered "yes", were your satisfied that your intended answer choices were marked? Ms. Schneider verified in writing that the special provisions were provided to the candidate as had been referred to above, and that Petitioner did not request the assistance of an examination supervisor during or at the examination. Both Petitioner and Ms. Schneider signed on December 17, 1997, acknowledging the responsibilities of the reader as being: The following guidelines have been established for candidates who use a reader during the written examination. This will ensure that their examination questions and answers are accurately read (and answers marked if necessary). The reader CANNOT INTERPRET, RE-WORD, OR PROVIDE ASSISTANCE IN DETERMINING THE ANSWER to any test question. The reader may read the test question and/or test materials as many times as requested by the candidate. The reader may read the questions in ENGLISH ONLY. The reader CANNOT TRANSLATE the examination questions to any other language. Both the candidate and reader will have an examination book, unless the candidate is visually impaired and does not require the use of a book. The question, answer choices and answers will be read to the candidate by the reader. If a scribe is being used (proctor to mark or transfer answers): The reader will verbally re-read the answer choice and answer to the candidate for verification. After a candidate has completed the examination, and time permits, the candidate has the option to review the examination questions and indicated responses. Due to the length of some examinations, it may be necessary for the reader to take a break. During that time the candidate is also to take a break. The same reader should be used during the entire session for continuity. As stated, Petitioner believes that the answers she gave to questions 19, 24, 25, 30, 46, 50, 55, and 78 were correct. Petitioner had made known her concern about being graded down for her answers to those questions in remarks recorded on the examination review scratch paper, when afforded the opportunity to review the examination results on February 20, 1998. See Section 455.217, Florida Statutes. In addition to Petitioner's testimony concerning her answers to the examination questions at issue, Petitioner presented the testimony of Mr. Bobby W. Parks, Jr., a practicing cosmetologist licensed in Florida, who has also served as an instructor in cosmetology at the Franklin Peterson Academy in Duval County, Florida. Mr. Parks offered his testimony concerning the results of the answers which Petitioner gave to questions 24, 46, 50, 55, and 78. In support of its decision to find the answers Petitioner gave to the subject questions to be incorrect, Respondent presented the witnesses Ms. Carol Nealy and Ms. Beth Hildebrand, cosmetologists licensed to practice in Florida who also serve as consultants to Respondent in the periodic preparation and administration of the cosmetology examination. Ms. Carol Nealy and Ms. Beth Hildebrand also pointed to references within the cosmetology profession that are generally accepted in cosmetology school and within the practice of cosmetology to support their respective opinions concerning the propriety of the answers to the subject questions which Respondent deems to be correct. In response to question number 50, Petitioner chose answer: D. pre-softening solution. The preferred answer by Respondent was: C. cream conditioner. In his opinion, Mr. Parks indicated that either answer would suffice. His opinion is accepted. Respondent's experts' opinions are rejected. Petitioner's answer to question 50 is credited. Otherwise, the answers which Petitioner gave to question numbers 19, 24, 25, 30, 47, 55, and 78 are incorrect in that Petitioner and Mr. Parks in their testimony are unpersuasive, and Ms. Nealy and Ms. Hildebrand are persuasive in their testimony, supported by references, that the answers preferred by Respondent are correct and the answers given by Petitioner are incorrect.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered which credits the Petitioner for the answer given to question number 50, as well as the earlier credit extended for the answer given to question number 63, and that otherwise denies Petitioner relief. DONE AND ENTERED this 15th day of January, 1999, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1999. COPIES FURNISHED: Patricia A. Crawford Parson 8574 Vining Street Jacksonville, Florida 32210 Patricia A. Crawford Parson Mickey's House of Beauty 1233 Lane Avenue, Suite 23 Jacksonville, Florida 32210 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Lynda A. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Joe Baker, Executive Director Board of Cosmetology Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007
The Issue The issue for consideration was whether Petitioner was properly denied licensure as an optometrist based on the examination taken by him on September 16 - 18, 1988.
Findings Of Fact At all times pertinent to the issues herein, the Board of Optometry has been the state agency responsible for the licensing of optometrists in Florida. On September 16 - 18, 1988, Petitioner, Kenneth W. Gerke, O.D., took the optometry examination administered at the Department's Miami Examining Center. He failed both the practical examination and a clinical examination, and passed the pharmacology/ocular examination with a grade of 72 and the Florida law/rules examination with a grade of 96. No evidence was introduced to establish what the pass/fail point was for each section of the examination. Thereafter, Respondent requested a review of his scores and on February 28, 1989 he was again notified he had failed the examination though his pharmacy/ocular score was raised to 73.7 and his clinical score was raised to Petitioner then filed a request for a hearing to contest specifically the grade he received on questions 4 & 10 of the clinical examination, Part I, and questions 2, 10, 14, 15, and 16 of the clinical examination, Part II. In his initial request for review, submitted on December 3, 1988, Petitioner did not cite specific questions, asking only that the test results of the practical examination taken on September 18, 1988 be reviewed with special emphasis on that portion of the practical which dealt with tonometry. Petitioner thereafter challenged Examiner 11's grading of question 4, Clinical I, and Examiner 13's grading of question 10, on Clinical I. With regard to the former, Petitioner claims the examiner did not fill in the bubble, thereby depriving him of 1 point. This discrepancy was corrected on review, however, and Petitioner was awarded credit. With regard to the latter, Petitioner was given full credit for the entire question on review. The combined increase did not give him a passing score. With regard to question 2, Clinical II, Petitioner questions Examiner 60's evaluation of his answer, contending the disc was clearly visible and should have been seen by the examiner since the other examiner, 54, who was working in pair with Examiner 60, did see it. Review of the evaluation sheet pertinent to this question reveals that Examiner 60 gave Petitioner no credit, indicating he did not see the disc. Examiner 54, his partner, gave Petitioner credit but, in the comments section of the form, indicated, "not a very good view." On review, examination officials decided to make no change in Petitioner's grade because even Examiner 54, who had given Petitioner credit for having performed the disc, indicated it was not a good view, and on that basis, they could find no basis to change examiner 60's evaluation. Petitioner presented no evidence to show that decision was in error. Petitioner challenged Examiner 54's evaluation of his answer to question 10, Clinical II, indicating, "I did focus on optic disc and estimate C/D ratio (the other examiner saw it and awarded full points). It was very clear to me and I cannot understand why the examiner did not see it." In this case, Examiner 60 gave Petitioner full credit for his answer, but Examiner 54 gave no credit. When examiners disagree, generally examination officials look at the Examiner comments individually. If it is impossible to sustain the negative comments, the negative evaluation is rejected and the applicant is given full credit. Even if the dispute cannot be resolved, partial credit is usually given, and in this case, initially, Petitioner was given half credit. However, upon review it was determined that his challenge to the grade given by examiner 54 on this question had merit, and he thereafter received full credit for the question. This did not give him a passing score, however. With regard to question 14, Clinical II, Petitioner challenged both Examiner 60 and Examiner 54, since both gave him no credit for his performance of the procedure, a Goldman tonometry. Examiner 54 commented that Petitioner "ran out of time" and Examiner 60 commented that he could see no "mires". Petitioner's challenge reads, "My patient was tearing profusely. I applied fluorescein strip and attempted the pressure measurement. There were no mires due to excessive tearing of patient washing out fluorescein. I dried the patient's tears, reapplied another fluoresceins strip, and was retaking the pressure when time ran out. I believe the timer was not set correctly to allow me a full two minutes." This procedure requires the candidate to anesthetize the patient's eye, apply a fluorescein dye, and thereafter measure pressure by evaluation of "mires" observed through the instrument. Resolution of this question involves a study of the background of the examination. So much of the examination as is contained in Part I is conducted with the candidate performing certain procedures on a patient provided by the examination officials. Part II of the examination involves observation of procedures accomplished on a patient provided by the candidate. The patient is first evaluated by examination officials to determine that he or she is qualified to serve and one eye is dilated by examination officials at that time. Thereafter, the patient is released to the applicant who performs the procedures required under the observation of the two examiners assigned to him. In the case of question 14, the procedure requires the candidate to demonstrate accurate measurement of intra-ocular pressure. He is required to anesthetize the eye, apply a fluorescein dye by means of a strip dipped into the substance, and thereafter measure pressure by the use of an instrument which is gently placed against the patient's eyeball and through which "mires" are observed. Petitioner's patient was unknown to him at the time he performed the procedure. Because he did not know anyone to take as his patient, prior to the examination he contacted an optometrist in Miami whose secretary's boyfriend was recommended as a patient. Petitioner accepted him and used him and the patient was qualified as a bona fide patient. Petitioner contends, however, that for various reasons, the patient's eyes teared excessively washing out the fluorescein dye which would have provided the "mires" for observation. Before he could get additional dye into the eye and remove the excess, time ran out. He also claims that he was not given the full two minutes to accomplish the procedure. Both examiners denied Petitioner credit for his performance of this procedure. On review it was felt that Petitioner did not overcome the negative comments of the examiners. Further, Petitioner failed to follow the procedure which he should have invoked at the time, a description of which was included in the examination description and study guide provided to him prior to the examination and which was verbally briefed to him the day of the examination. He should have notified his examiners at the time he noticed the excessive tearing. Under the protocol for this examination, those examiners would not have made a determination at the site but would have brought the problem to the supervisor for review. Petitioner also could have filed a card when he left his station to formally register the complaint - not while the patient is still present, but to be reviewed afterward. There is no indication here that either examiner brought Petitioner's problem to the supervisor because Petitioner did not bring it to their attention. In addition, Petitioner did not fill out a comment form about the problem as he could have done when leaving the area. If he had notified the examiners of the problem, they would have stopped the evaluation at that moment. The complaint procedure is designed to insure the applicant gets a fair and full chance to demonstrate his ability. Petitioner failed to utilize it. Consequently, even on review he was awarded no credit for this question. Petitioner also challenges Examiner 60's evaluation of his response to question 15, Clinical II, and contends: I did provide a good view of the angle structures. My patient had wide open angles clearly visible. The evaluation sheet reflects that both Examiners 54 and 60 gave Petitioner no credit for this question. Examiner 54 commented that Petitioner failed to describe "scleral spur" and Examiner 60 commented, "Poor to no view." On review, it was determined that neither examiner initially gave credit and that there was no evidence presented by Petitioner which would cause a change to that lack of award. Based on the evidence presented at the hearing, it is found that Petitioner has failed to demonstrate a basis for change to the score of "0" given him on question 15. Petitioner also challenges Examiner 60's response to question 16, Clinical II, claiming: I did estimate the pigment deposition. The examiner may have had a poor view (as in other parts) but mine was clear. (The other examiner had a clear view and awarded full points.) Review of the evaluation sheets reflects that Examiner 54 gave Petitioner full credit for this procedure and he was originally awarded 2 points. The examination sheet filled out by Examiner 60 reflects, "No credit. Poor to no view." On review, the award of 2 of 4 points was not overturned. At the hearing, Petitioner engaged in a substantial dialogue with the Board's consultant, Dr. Attaway, as to whether the examiners' view of the applicant's performance could have been affected by either the placement of the "teacher's" mirror, through which the examiners observed the procedure, or the examiners' position with regard to the mirror. Dr. Ottawa conceded that both contingencies could affect the evaluation and in light of the fact that Examiner 54 gave full credit with no adverse comment, and his opinion has been held to be highly esteemed in other incidents involving this Petitioner, it must be concluded that Petitioner's accomplishment of the required procedure was done properly and he should be awarded the additional 2 points. In each case during the examination, the candidate is observed by two examiners. It is not uncommon for examiners to disagree. Between 85 and 88 percent of the time, they agree on their evaluation of a particular candidate's procedure. In the instant case, however, the area of disagreement was somewhat higher. When this happens, generally it means the candidate is borderline; neither clearly very good nor clearly very poor. With regard to the pressure test, (Goldman tonometry), measured in procedure 14, the Board's consultant, agrees that not all patients can be evaluated for pressure utilizing this method, also known as aplination tonometry. In the instant case, the evidence showed that the patient had had his eye dilated upon reporting for qualification more than an hour prior to the accomplishment of the procedure. In the course of the qualification and the procedure evaluations, he had been examined by numerous people. This is not an unusual set of circumstances in an examination situation. It would, however, prolong the procedure and certain individuals tear more than others. As a result, it is possible that in these circumstances, the patient would excessively tear and the fluorescein dye used to present the mires could wash out, giving an improper reading. Here, one examiner indicated he was unable to identify or observe any mires. If the probe used to measure pressure were touching the eye and no mires were presented, that would mean there was no dye left on the eye. However, if the probe was not touching the eye, there would be no mires presented even if there was dye in the eye. Petitioner's witness, Dr. Perry, an expert in ophthalmology, has often had dye wash out of an eye because of excess tearing and has often had difficulty in getting a pressure reading. It can quite often take longer than the 2 minutes allowed during the examination for the procedure and is sometime impossible to get under any circumstances. Aplination tonometry is not a difficult procedure to learn and its use is not reserved to ophthalmologists or optometrists. Routinely, technicians are easily taught to perform it and do so on a repeated basis. Petitioner has worked for an ophthalmologist in the Sarasota area for 5 years as a technician and has done many of the procedures on which he was tested during the examination in issue. Petitioner has done thousands of aplination tonometry procedures and in fact, has performed the procedure on Perry. In those cases of which Dr. Perry is aware, including his own, the procedure was done properly. Dr. Parry agrees that the time limit of 2 minutes allotted at the examination is not unrealistic in the normal situation. However, the procedure often takes more than 2 minutes to perform, and when it does, that fact is usually indicative of a problem with the patient, not the tester. Based on his personal experience with Petitioner's demonstrated ability to properly perform the aplination dynamotor procedure, he is "flabbergasted" that Petitioner had problems with it during the examination. There is more than one way to apply fluorescein dye to an eye for the purpose of pollination dynamotor. One is to apply the fluorescein by strip and the other is to apply a mixture of dye and anesthetic by dropper. The latter method requires a 30 to 60 second wait after application to allow the excess solution to wash out. However, that procedure was not used in this examination, and the strip, which allows immediate application of the probe and observation of mires, was. In the instant case, the patient's eye had been dilated for over an hour when the examiner placed the anesthetic in the eye to be examined and told Petitioner to begin. Petitioner started immediately but was unable to get a mire even though he saw the glow in the patient's eye which indicates the probe was touching the eye as appropriate. When he checked the equipment and found it to be operating properly, he realized that the dye had washed out of the eye because of the tearing and he was attempting to begin the process again when the examiner indicated he had run out of time. Though Petitioner claims the amount of time he was given was improperly measured, he is unable to establish that by any independent evidence. When he asked the examiners for a second opportunity, allegedly he was advised, "Don't worry about it. It's only one question." After the examination, he thought about filing an objection card but, since he claims to have been advised by another optometrist, "not to make waves", he decided against it. Petitioner claims that the examination was fatally flawed for several reasons. The first is that Examiner 60, he claims, was routinely different and more strict with him than was Examiner 54. Rebuttal evidence presented by Ms. Loewe, the examination specialist, indicates, however, that for this examination, Examiner 60 generally graded higher than others across the board. Petitioner also claims that the routine order of tests was not as recommended by experts. Generally, certain procedures are to be accomplished in a certain sequence in a routine examination. Petitioner overlooks, however, that regardless of the sequence of procedures, the examination was not a routine "patient" examination but an examination of the applicant's ability to perform the procedures in question. The considerations dictating a certain sequence in a clinical examination may not be pertinent to the sequence appropriate for a candidate examination, and this argument is without merit. Petitioner also questions the anonymity of the candidate which prevents a knowledge of the candidate's other background and unexamined qualifications. Anonymity is designed to allow a candidate to demonstrate for examiners the substance of his knowledge and skill, is routine, and is found to be appropriate. Further, he claims the location of the examination, the time limit, and the other factors surrounding the conduct of the examination promote nervousness in the candidate and hinder the candidate in his performance of the required procedures to the best of his ability. There was no independent evidence to support this contention or to demonstrate that had the examination been conducted under other circumstances, Petitioner or any other examinee would have performed differently. There are legitimate reasons for the actions taken by the Board, considering the way the examination was conducted. Admittedly the order of tests to be given is not included in the study guide, and the applicant would not know in advance in what order the procedures would be accomplished, but he would have advance information as to which procedures would be examined. Petitioner also pointed out that the patient upon whom he performed the procedures was a stranger to him and that because of his unfamiliarity with the patient and his background, he sustained a handicap more severe than the other candidates. This contention is without merit. All new patients are strangers to the optometrist when they first come for examination. In any case, the candidate is not being asked to treat a patient, but to demonstrate his ability to properly accomplish certain procedures.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner's scores on the September 16 - 18, 1988 optometry examination, as revised prior to hearing, be sustained except for that awarded in Question 16, Clinical II, and that he be awarded an additional two (2) points for his performance of that procedure. RECOMMENDED this 19th day of July, 1989 at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 18th day of July, 1989. COPIES FURNISHED: Kenneth W. Gerke, pro se 1831 Mid Ocean Circle Sarasota, Florida 34239 Laura P. Gaffney, Esquire Department of Professional Regulation 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Lawrence A. Gonzalez Secretary DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Kenneth A. Easley, Esquire General Counsel DPR 1940 N. Monroe Street Tallahassee, Florida 32399-0792 Pat Guilford Executive Director Board of Optometry 1940 N. Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues in this case are presented on the basis of an Administrative Complaint brought by the Petitioner against the Respondent. Allegations set forth in that complaint pertain to the treatment of the patient Helen Gilmore. It is alleged that Respondent failed to record on the patient's records or perform the minimum examination procedures for vision analysis related to that patient in an examination of January 26, 1982. It is further alleged that on May 29, 1982, that the patient requested a duplicate copy of the original prescription obtained from the initial examination but Respondent instead performed a new eye examination and again failed to record on the patient records or perform the minimum procedures for vision analysis concerning this patient. In the face of these factual allegations, Respondent is said to have violated Sections 463.012 and 463.016(1)(g) and (h), Florida Statutes, and Rule 21Q-3.07, Florida Administrative Code.
Findings Of Fact At all times relevant to the Administrative Complaint, Respondent has been licensed as a practicing optometrist in the State of Florida, license No. 40616. During this sequence, Respondent has conducted his practice in Palatka, Florida. Respondent saw the patient Helen Gilmore on January 26, 1982. Ms. Gilmore was having difficulty with her present glasses related to vision in her left eye. Following an examination which took into account the minimum procedures for vision analysis set forth in Rule 21Q-3.07, Florida Administrative Code, Respondent issued a prescription for the patient which deviated from the prescription in the glasses which she was wearing at the time of the examination. Respondent charged $30 for the examination and prescription, which was paid by Gilmore. The prescription was presented to Eckerd's Optical Service in Palatka, Florida, in March 1982, at which time Reid obtained new lenses and frames. Ms. Gilmore paid Eckerd's for the lenses and frames. Having obtained the new frames and lenses from Eckerd Optical, Ms. Gilmore wore those glasses until she started having trouble focusing one of her eyes. Specifically, the patient was having trouble focusing on distant objects. Ms. Gilmore complained to Eckerd Optical about her problem several times. Eckerd Optical was unable to find the duplicate prescription related to the request for prescription by Dr. Reid and Gilmore was advised to return to Dr. Reid and receive a copy of that prescription from his office. In this regard, Dr. Reid's office, in the person of his wife, contacted Gilmore and asked if some problems were being experienced, to which Gilmore indicated that she was having difficulty with her eye and Mrs. Reid stated that Gilmore should return and have her eyes checked again by Dr. Reid. On May 29, 1982, Gilmore was seen by Respondent in his office. The purpose of this visit was to obtain a duplicate copy of the prescription which had been given by Dr. Reid on January 26, 1982 and Gilmore made this known to Respondent. Dr. Reid examined the glasses which Ms. Gilmore had purchased from Eckerd Optical and discovered that the lenses were not in keeping with the prescription which he had given to the patient in that the cylinder correction for astigmatism was not as prescribed and the bifocal had been made up round as opposed to flat. The variance in the prescription given and the prescription as filled was slight. Nonetheless Dr. Reid was of the opinion that it could cause and had caused discomfort to the patient, though not in the way of permanent damage. Having this in mind, instead of providing the duplicate copy of the prescription as requested, Respondent conducted a further vision analysis carrying out those procedures set forth in Rule 21Q-3.07, Florida Administrative Code. On the May 29, 1982 visit, and in the January 26, 1982, examination, Respondent failed to record on the patient's case record the indication that external examination including cover test and visual field testing had been done. Moreover, as established by the testimony of a qualified expert, Dr. Walter Hathaway, who is licensed and practices optometry in the State of Florida, the further examination was not optometrically indicated. This determination was made by Dr. Hathaway based upon the fact that Respondent should merely have provided a duplicate copy of the original prescription of January 26, 1982, as issued by Dr. Reid, having discovered the mistake in the efforts of Eckerd's to fill that prescription and allowed Eckerd's to rectify its error. Per Hathaway, it not being necessary to conduct further examination of the patient, to do so was outside acceptable community standards for the practice of optometry, Again, the opinion of Dr. Hathaway is accepted. As a result of the examination, Dr. Reid prepared a second prescription, which was unlike his January 26, 1982, prescription and the efforts at compliance with that prescription made by Eckerd's in fashioning the lenses. Gilmore was charged $35 for the examination and she paid the bill.
The Issue The central issue in this case is whether Petitioner should be granted additional credit for the responses given during his practical examination for licensure which was conducted during November, 1991, and for which Petitioner entered this challenge.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: Petitioner, David Sanders, is a candidate for chiropractic licensure. His candidate for licensure number is 200142, and he took the November, 1991, practical examination administered by the Department. Petitioner received a score of 64.0 on the practical examination. Petitioner's score fell below the minimum score for passing, 75.0. Petitioner timely challenged the examination results and claimed that the Department had incorrectly graded Petitioner's responses and performance during the examination. In this case, the practical examination was administered by two examiners who, independently of one another, scored the responses given by Petitioner when presented with two case studies. For Case 1, the scoring was divided into fourteen sections or subsections where the candidate was evaluated and given points based upon the responses given. For the orthopedics section of Case 1, the Petitioner was given a scenario of facts from which he was to determine the appropriate tests to be administered to the patient. Following selection of the tests to be given, Petitioner was required to perform the test. For an inappropriate test, no points were awarded, even if the candidate performed the test correctly. Of the nine tests listed, four were to be chosen and performed. One point was awarded for each appropriate test correctly performed. In response to the orthopedics section, Petitioner selected three appropriate tests to perform. Consequently, the maximum grade, per examiner, he could have received was a score of three. Petitioner received a score of two from one examiner, and a three from the other. The first examiner commented that the Yeomans test was wrong. Since Yeomans was an appropriate test to perform, and Petitioner correctly performed the test, Petitioner should have received a three on that section from that examiner. Under the neurological subsections of Case 1, Petitioner was required to identify, based upon the fact scenario given, four muscles which should be examined and tested. Petitioner only identified three relevant muscles. Consequently, he received a score of three from each examiner. The scoring on this subsection was correct. Under subsection 8 of the neurological portion Petitioner received no credit as he failed to select three appropriate tests and correctly interpret the responses. Accordingly, the scoring on this subsection was correct. The final subsection of the neurological portion was the diagnosis rendered based upon all the findings of the scenario and test results. Since Petitioner rendered an inappropriate diagnosis, no points were awarded. The scoring on this subsection was correct. Case 2 of the physical examination contained nine sections or subsections for which Petitioner could have received credit. The first section of Case 2 required Petitioner to obtain a history from the patient. To achieve a perfect score on this section, the candidate had to inquire into seven or more areas of relevant history. If so, the score for the section would be a four. In this case, Petitioner should have received a four from both examiners regarding the history taken. As it was, Petitioner only received a three from the examiners. In order to receive credit on the physical-selection portion of the test, Petitioner was required to auscultate the heart and lungs, and purcuss the chest. Since he failed to do so, the scoring on this subsection was correct. In connection with subsections 18 and 19 of Case 2, Petitioner failed to receive full credit because he did not indicate an appropriate laboratory test. Had Petitioner requested a SMAC test, full credit would have been given for both subsections. As it was, because Petitioner failed to request a SMAC test, he could not receive credit on either subsection. The scoring on these subsections was correct.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Board of Chiropractic Examiners enter a final order changing Petitioner's score on the November, 1991, physical examination as noted above in order to recalculate and determine whether or not Petitioner failed the examination through no fault of his own. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1992. APPENDIX TO CASE NO. 92-2709 RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE PETITIONER: 1. None submitted. RULINGS ON THE PROPOSED FINDINGS OF FACT SUBMITTED BY THE RESPONDENT: With regard to paragraph 1, with the deletion of the words "on physical diagnosis" in sentence 1, the paragraph is accepted. Paragraph 2 is accepted. Paragraph 3 is rejected as contrary to the weight of the evidence. Paragraph 4 is accepted. Paragraphs 5 through 9 are accepted. COPIES FURNISHED: David Sanders 359 Glenwood Avenue Satellite Beach, Florida 32937 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack McRay General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Chiropractic Examiners 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792
The Issue The basic issue in this case concerns the validity of the 1983 Board of Podiatry licensure examination. The Petitioners contend that the examination was invalid for several reasons, and that because of such invalidity, they should be licensed as podiatrists even though they both failed the exam. The Respondent contends that the examination was valid, and that even if invalid, the Petitioners are not entitled to licensure unless and until they receive a passing grade on a licensure examination. Subsequent to the hearing a transcript of the proceedings was filed with the Hearing Officer on July 12, 1985. Pursuant to agreement of counsel, the parties were allowed three weeks from the filing of the transcript within which to file their proposed findings of fact and conclusions of law, which time period was later extended at the request of counsel for the Petitioners. On August 9, 1985, the Petitioners filed a proposed recommended order containing proposed findings of fact and conclusions of law, and the Respondent filed proposed findings of fact and a memorandum of law. The posthearing submissions filed by the parties have been given careful consideration in the preparation of this Recommended Order. Specific rulings on each proposed finding of fact in the posthearing submissions are set forth in the appendix which is attached to and incorporated into this Recommended Order.
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at the formal hearing, I make the following findings of fact. At all times relevant to these proceedings the licensure examination administered by the Board of Podiatry has tested the following nine subject matter areas: anatomy, biochemistry, orthopedic podiatry, surgery; clinical podiatry and differential diagnosis, physiology, materia medica and pharmacology, pathology, and dermatology. At all relevant times the licensure examination has consisted of a total of 360 questions: forty questions on each of the nine subject matter areas covered by the examination. At all relevant times an overall average of seventy-five per cent (75 percent) has been required to achieve a passing score for the examination. An additional proviso at all relevant times is that a passing grade will not be given to any person who fails to achieve a minimum grade of fifty per cent (50 percent) in any one of the nine subject areas. The Petitioners Dr. Pascual Estevez and Dr. Victor Verjano, took the Board of Podiatry licensure examination in each of the following years: 1982, 1983, 1984. Both Petitioners failed all three exams. 1/ Dr. Estevez' scores on the 1982 and 1983 examinations were as follows: SUBJECT 1982 SCORE 1983 SCORE anatomy 30.0 percent 42.5 percent biochemistry 50.0 percent 60.0 percent orthopedic podiatry 45.0 percent 27.5 percent surgery 47.5 percent 50.0 percent clinical podiatry and differential diagnosis 32.5 percent 35.0 percent physiology 37.5 percent 40.0 percent materia medica and pharmacology 25.0 percent 45.0 percent pathology 40.0 percent 52.5 percent dermatology 45.0 percent 60.0 percent OVERALL AVERAGE 39.17 percent 45.8 percent Dr. Verjano's scores on the 1982 and 1983 examinations were as follows: SUBJECT 1982 SCORE 1983 SCORE anatomy 17.5 percent 37.5 percent biochemistry 40.0 percent 57.5 percent orthopedic podiatry 30.0 percent 30.0 percent surgery 27.5 percent 47.5 percent clinical podiatry and differential diagnosis 35.0 percent 27.5 percent physiology 22.5 percent 37.5 percent materia medica and pharmacology 20.0 percent 35.0 percent pathology 30.0 percent 55.0 percent dermatology 37.5 percent 57.5 percent OVERALL AVERAGE 28.89 percent 42.7 percent The 1983 Board of Podiatry licensure examination was the first podiatry examination that used questions solicited from professors of podiatry at several colleges of podiatry outside the state of Florida. The Board could not obtain questions from professors of podiatry within the state of Florida because there are no colleges of podiatry in this state. The Board preferred to avoid soliciting questions from podiatrists practicing in this state so that there would not be any local knowledge of the examination content readily available within the state. The decision to obtain a new pool of questions from professors of podiatry was a result of the opinion of the Board of Podiatry that the level of difficulty of previous examinations probably tested less than minimum competency. The Board felt that questions should be of a higher difficulty level than had been used on previous examinations because they were concerned that incompetent people were managing to "sneak through." When the Office of Examination Services wrote to the college professors to request that they prepare questions to be used on the examination, the letters to the professors included the following information with respect to the level of difficulty the Board preferred: For our purposes, the content tested by an item should be clearly pertinent to the mainstream practice of podiatry and ideally of a difficulty level such that you would expect most of the upper third of a graduating class to answer correctly while the majority of the lower third would find the item to be quite difficult. As regards to the difficulty level, the Board would prefer that in departing from the ideal you tend to favor higher difficulty levels. The college professors who prepared questions for the 1983 Board of Podiatry licensure examination did not all follow the guidelines quoted immediately above. Some of them wrote questions which in the opinion of the Board were too easy. The questions for the 1983 Board of Podiatry licensure examination were derived from three sources: those submitted under contract by selected professional faculty members at colleges of podiatry in California, Iowa, and Pennsylvania (approximately 50 percent of the questions), those prepared by the five professional members of the Podiatry Board (about 25 percent), and items selected by the developer from the item bank (about 25 percent). The latter were specifically selected for high discrimination between passing and failing candidates on a previous exam. This group of 89 test items was used to estimate the relative capability of the 1983 candidates. The remaining test items were selected by the professional members of the Board from the 337 items submitted by consultants and those contributed by the Board members themselves. Each question that was used on the 1983 Board of Podiatry licensure examination was submitted to the Board for review before being included on the examination. The Board reviewed and considered every question submitted and selected only those they felt were adequate to test the candidates' competency. They rejected questions which were too hard as well as those which were too easy. Following the administration of the 1983 Board of Podiatry licensure examination, each answer sheet was scored and a complete item analysis was generated for review by the examination development team. All items which were passed by 50 per cent or fewer of the candidates were scrutinized. Additional scrutiny was also given to items which displayed negative discrimination indices, i.e., those items passed by a greater proportion of low scoring examinees than high scoring examinees. A total of 109 items were identified for review by the Board. At its meeting on August 6, 1983, the Board determined that three items had been mis-keyed and that 39 items merited credit for all responses because of various defects. There remained a large number of questions which were of questionable validity because of the low percentage of upper half candidates who answered them correctly. A second review was conducted following submission of objections filed by candidates. Five additional examination items were credited for all responses and two were double keyed. Following the foregoing actions, a final psychometric review was conducted by the Office of Examination Services and 15 additional items were credited for all responses on statistical grounds. As originally administered and scored, the 1983 Board of Podiatry licensure examination was of a difficulty level that tested for greater than minimum competency and was substantially more difficult than the examination that had been given in 1982. However, with the adjustments described above in paragraph 11 of these findings of fact, the difficulty level of the 1983 examination was substantially the same as the difficulty level of the 1982 examination. As adjusted, the difficulty level of the 1983 examination was such that it tested for minimum competency or perhaps less than minimum competency. As adjusted, the difficulty level of the 1983 Board of Podiatry examination was such that it did not test for greater than minimum competency. The effect of the adjustments described above was to delete from the examination the initial bias of the examination toward the more difficult items. As adjusted, the percentage of candidates who passed the 1983 examination was 50.4 percent, which compares favorably with the 51.1 percent pass rate for 1982. Following the final Board review which credited all of the items described above in paragraph 11 of these findings of fact, several members of the Board of Podiatry, including its chairman, Dr. Owen P. Macken felt that although the examination was a valid measurement of minimal competency as initially given, once it was "watered down" by the removal of so many items it became an invalid measurement because the Department had given credit for too many questions. A total of 117 candidates took the 1983 Board of Podiatry licensure examination. As finally scored, fifty-nine of those candidates passed the examination. Expressed as a percentage, 50.4 percent of those who took the 1983 examination received a passing grade. Out of the total of 117 candidates who took the 1983 examination; the score of Dr. Verjano was; at best, 113th from the top, and perhaps as low as 116th from the top. The 1983 score of Dr. Estevez was, at best 110th from the top, and perhaps as low as 112th from the top. Compared from the other end of the scale, Dr. Verjano had perhaps the second worst grade of all 117 who took the 1983 examination and had no better than the fifth worst grade of all who took the examination. Dr. Estevez had perhaps the sixth worst grade of all 117 who took the 1983 examination and had no better than the eighth worst grade. 2/ As demonstrated by the "anchor questions," the candidates for examination who took the 1983 Board of Podiatry Licensure examination had characteristics very similar to the characteristics of the candidates who took the 1982 examination. In view of this similarity of the two groups of candidates who took the 1983 and the 1982 examinations, the fact that their success rate was very similar indicates that the difficulty level of the two examinations (as finally adjusted) was very similar. Accordingly, a candidate who passed one examination would probably have passed the other examination, and a candidate who made a very poor grade on one examination would probably have made a very poor grade on the other examination. The Board of Podiatry is composed of two lay members and five professional members. Each of the professional members is a licensed Florida podiatrist currently engaged in the active practice of podiatry in the state of Florida. The function of the Board differs from that of the Department of Professional Regulation. The Board is charged with determining the content of the examination questions so as to ensure that every podiatrist practicing in the state meets minimum requirements of safe practice and that podiatrists who fall below such minimum competency or who otherwise present a danger to the public health would be prohibited from practicing in the state. The Board also determines the general areas to be tested and the score that shall be necessary evidence of passing the examination. The Department's function through its examination development specialists is to ensure that the test items or questions are functioning as they were intended and to advise the Board as to the worth of the individual items. Although a national podiatry examination is available, the Board of Podiatry has chosen not to use it. This appears to be due in part to the differences from state to state in the lawful scope of the practice of podiatry, some states limiting the practice to the foot while in Florida the scope of practice extends up to the knee.
Recommendation On the basis of all the foregoing it is recommended that the Board of Podiatry enter a Final Order concluding that the Petitioners have failed the 1983 examination and denying the Petitioners' applications for licensure on the basis of their having failed the 1983 examination. DONE AND ORDERED this 1st day of November, 1985, at Tallahassee Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985.
Findings Of Fact Petitioner applied for and took the 1982 acupuncture examination consisting of four parts. He failed Part IV the clinical practical, or hands- on, part of the examination dealing with needle insertions, manipulation and needle removal, patient care, sanitation and antiseptic application. In 1983 the Florida Legislature created the Board of Acupuncture within the Department of Professional Regulation and empowered the Board with the authority to adopt rules. Perhaps in conjunction with that transfer of authority, the 1983 acupuncture examination was cancelled, and no examination was given during 1983. Effective August 13, 1984, the Board enacted rules regulating the examination and re-examination of acupuncturists. In October, 1984, a restructured three-part acupuncture examination was administered. The practical Part of that examination, Part III, was divided into two sections: the written practical section and the clinical practical section. Petitioner took the clinical practical section of Part III but was not required to take the written practical section of Part III. Petitioner again failed the clinical practical section. In December, 1984, Petitioner was notified in writing as to his 1984 examination results and was advised in an accompanying document that the deadline for filing an application to retake the acupuncture examination in 1985 would be May 24, 1985. That same accompanying document also advised Petitioner that candidates who failed either section 1 or section 2 of Part III must retake both section 1 and section 2 of Part III. Petitioner made the decision that he would not take the 1985 acupuncture examination but rather would wait until the 1986 acupuncture examination was given. However, when Petitioner "got laid off" from his employment, he decided to take the 1985 examination, mailing his application therefor the day before the deadline. In July, 1985, Petitioner retook Part III of the acupuncture examination. Petitioner received a score of 54 on the written practical section and a score of 65 on the clinical practical section. A score of 70 or greater on both sections is required in order to achieve a passing grade for Part III. Petitioner requested a review of his grades. That review revealed that although errors were found in scoring the written practical section, Petitioner's adjusted grade on that portion of the practical Part of the examination remained below the required 70. The review of the clinical practical section of that Part of the acupuncture examination revealed that both examiners who graded Petitioner on the clinical practical section evaluated Petitioner identically as to those areas in which Petitioner's performance was inadequate, agreeing item by item.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding that Petitioner failed both sections 1 and 2 of Part III of the 1985 acupuncture examination; denying Petitioner's request that his grade be set aside and that he be permitted to retake the examination without first completing the educational requirements; and denying Petitioner's application for certification to practice acupuncture in the State of Florida. DONE and RECOMMENDED this 24th day of October, 1986, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of October, 1986. COPIES FURNISHED: Marcelle Flanagan, Executive Secretary Board of Acupuncture 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Wings S. Benton, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Bruce Alexander, Esquire 9200 South Dadeland Boulevard Suite 515 Miami, Florida 33156 H. Reynolds Sampson, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Each of the Petitioners qualified and took the State of Florida examination in July 1987 for licensure as a podiatrist. Initially, there were nine Petitioners in these proceedings, but four were subsequently given a passing grade on review of their examinations, and these four Petitioners were dismissed. Each of the Petitioners successfully passed national board examinations for podiatrists prior to sitting for the July 1987 examination here at issue, and all failed to receive an average grade of 75% on the nine subjects on which they were examined. The questions included in the July 1987 examination were taken from a large group of questions assembled into each category or subject on which the applicant for licensure is tested. To compile these questions and put together an examination, a group of experts in the field of podiatry was assembled to determine the subjects to be included on the examination. These subjects were subsequently enacted in Rule 21T-11.002, Florida Administrative Code. These subjects were referred to "item writers", generally academicians in the field of podiatric medicine, each of whom prepared a minimum of 50 questions on each subject. Upon return of these questions to Respondent, these items were reviewed by five content specialists on the Board of Podiatry to insure the validity of the questions and then placed in the item bank from which a certain number from each subject is withdrawn for the examinations. Not all of the items submitted by the item writers are found valid in this review and added to the item bank. For the 1987 examination, no new items were entered, and all questions used were taken from the item bank. Accordingly, most of the questions had been used on earlier examinations. In selecting questions for the 1987 examination, certain questions used on the 1986 examination were used so the group being examined in 1987 can be compared to the group examined in 1986. Comparing the correct answers given by the 1986 group of examinees to these questions common to both examinations, with the correct answer given by the 1987 examinees, showed the earlier examinees performed better than the group in which these Petitioners were examinees. Projecting that percentage to the entire examination shows the 1986 examinees scored five to eight points higher than the 1987 group overall. When the 1987 examinations were scored initially, only some 31% of those taking the examination received a passing grade. These scores were obtained from a computer scoring of the answer sheet submitted. Following receipt of these results, those questions which were marked incorrectly by the highest number of examinees were reviewed and submitted to the Board for review. As a result of this review, some of those questions were credited as being correct if another choice than the correct choice were selected by the examinee or if the exam key was in error. The tests were regraded, and those scores were sent out to the candidates with a notice of their right to challenge questions and answers. Following the candidates being given an opportunity to review the questions and answers on their individual examination with DPR personnel, the Test Development Specialist at DPR, Mrs. Hall, who is in charge of preparing the podiatry examination, again reviewed the questions and answers and presented to the Board a list of questions (by number) for which a large number of examinees had submitted an incorrect answer, to have the Board reconsider to determine if these questions were too difficult and to give credit for any answers as correct. As a result, the Board gave additional credit to all examinees, and four of the original nine Petitioners received a passing grade. A total of 57 adjustments were made in these scorings involving miss-keys, ambiguous questions and too difficult questions. Petitioner presented two witnesses who purported to testify to the merits of this challenge. Dr. Black is a podiatrist at Bay Pines Veterans Administration Hospital near St. Petersburg who operates a residency program in which he has trained four residents each year for the past five years. Petitioner Ellison is the only resident in Dr. Black's program who failed the Florida Podiatry examination, and Dr. Black considers Ellison to be as fully qualified for licensure as the other residents who completed the program and passed the examination. Petitioners' other witness, who was also not a Petitioner, was James F. Pruchniewski. This witness was an original Petitioner who received a passing grade on a regrading of the examination and withdrew his petition for hearing. Dr. Pruchniewski opined that the July 1987 podiatry examination was "inferior". He had earlier been a science teacher in high school and had frequently checked examinations prepared by fellow teachers. He has never been involved in preparing professional examinations, but considers the initial 31% passing rate to be outrageously lopsided. In view of this witness' lack of experience or training in preparing or grading professional examinations, his opinions are given little weight.
The Issue The issue in this case is whether Petitioner is entitled to receive a passing grade on her optometry examination.
Findings Of Fact Petitioner took the optometry licensure examination on September 22-24, 1991. Following review of her initial scores, Respondent informed her by notice dated February 22, 1991, that she earned 100 points on Florida law and rules, which was a passing grade; 52.5 points on pharmacology and ocular diseases, which was below the minimum passing grade of 70; and 77 points on clinical, which was below the minimum passing grade of 80. Petitioner challenged her grades on the pharmacology and ocular diseases and clinical portions of the examination. However, at the beginning of the hearing, shedropped her challenge to the pharmacology and ocular diseases portion of the examination. The clinical portion of the examination is divided into two sections. In the first section, the applicant sees a "patient." Two examiners watch and listen as the applicant examines the "patient," who is unknown to the applicant and has been prepared with certain information. The applicant is graded under various areas within the broad categories of case history, visual acuity, pupillary exam, confrontation visual fields, and extra-ocular muscle balance assessment. In the second section, the applicant brings with him to the test site his own "patient." Two examiners, who are different from the examiners for section one, evaluate the applicant's ability to use various types of clinical equipment on his "patient." In the first section, Petitioner challenged the grades that she received for Questions 6, 8-10, and 11, which are all worth two points except for Question 10. Question 10 is worth four points. In the second section, Petitioner challenged the grades that she received for Questions 1-4, which are all worth five points, except for Question 4. Question 4 is worth four points. Any combination of additional points adding up to two or more would give Petitioner a passing grade on the pharmacology and ocular disease portion of the examination. As noted below, Petitioner received partial credit for certainanswers. Each of the four examiners completed a scoresheet while grading Petitioner. When no or partial credit was awarded, the examiner would write comments explaining what the problem was. Testifying for Respondent at the hearing, a licensed optometrist, who was one of the examiners of Petitioner for section two, explained adequately each of the scores awarded Petitioner for each of the challenged questions. He established that the equipment was carefully calibrated prior to each test session and for each individual applicant. A psychometrician employed by Respondent also testified that she had analyzed the variance of the scores among the examiners, in terms of overall scores for all applicants, and found no variances tending to discredit the grades. The challenged questions and clinical procedures provided a reliable measure of an applicant's relevant ability, knowledge, and skill. Petitioner's grades were a fair evaluation of her performance on the challenged questions.
Recommendation Based on the foregoing, it is hereby recommended that the Board of Optometry enter a final order dismissing Petitioner's challenge to her scores in pharmacology and ocular diseases and clinical portions of the September, 1990, optometry licensure examination. RECOMMENDED this 19th day of June, 1991, in Tallahassee, Florida. ROBERT E. MEALE 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 19th day of June, 1991. COPIES FURNISHED: Jack McCray, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Patricia Guilford, Executive Director Board of Optometry 1940 North Monroe Street Tallahassee, FL 32399-0792 Chidiebere Ekenna-Kalu P.O. Box 621507 Orlando, FL 32862-1507 Vytas J. Urba Assistant General Counsel Department of Professional Regulation 1940 N. Monroe St. Tallahassee, FL 32399-0792
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.
